Appeal No. 2002-1645 Page 9
Application No. 09/281,553
and second side portions and having a back support (Engelhart's rest 38) extending
upwardly to an elevation above said arm supports and adapted to brace the upper back
of a standing patient (Engelhart's rest 38 does extend upwardly to an elevation above
the grips 32 and is adapted to (i.e., capable of providing) brace the upper back of a
suitably sized standing patient (e.g., a patient smaller than the patient depicted in
Figure 2 of Engelhart)); said arm supports and said back support cooperating to support
the patient's arms and upper body when the standing patient is positioned within said
interior space in the upright position (Engelhart's rest 38 and grips 32 are capable of
cooperating to support the arms and upper body of a suitably sized standing patient
(e.g., a patient smaller than the patient depicted in Figure 2 of Engelhart) when the
suitably sized standing patient is positioned within the interior space in an upright
position).
A patent applicant is free to recite features of an apparatus either structurally or
functionally. See In re Swinehart, 439 F.2d 210, 212, 169 USPQ 226, 228 (CCPA
1971) (" [T]here is nothing intrinsically wrong with [defining something by what it does
rather than what it is] in drafting patent claims."). Yet, choosing to define an element
functionally, i.e., by what it does, carries with it a risk. As the court stated in Swinehart,
439 F.2d at 213, 169 USPQ at 228:
where the Patent Office has reason to believe that a functional limitation
asserted to be critical for establishing novelty in the claimed subject matter may,
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