Appeal No. 2002-1807 Page 4
Application No. 09/247,419
discloses the claimed invention such that a skilled artisan could take its teachings in
combination with his own knowledge of the particular art and be in possession of the
invention. In re Graves, 69 F.3d 1147, 1152, 36 USPQ2d 1697, 1701 (Fed. Cir. 1995),
cert. denied, 116 S.Ct. 1362 (1996), quoting from In re LeGrice, 301 F.2d 929, 936, 133
USPQ 365, 372 (CCPA 1962). Applying this guidance of our reviewing court to the
situation at hand leads us to conclude that this rejection should not be sustained. Our
reasoning follows.
Nicholl is directed to a shopping cart having a basket with a fixed upper portion
and a movable lower portion. The examiner has found that the “basket” in Nicholl
comprises the “combination of items 30-37" (Answer, page 3), which comprises the
movable lower portion, and on this basis has concluded that the reference discloses all
of the subject matter recited in claim 1. While the examiner acknowledges that Nicholl
describes the “basket” as comprising a movable lower portion and a fixed upper portion
(Answer, page 6), he has taken the position that he is not bound by this description,
and his interpretation limiting the term “basket” to the lower movable portion is not
improper in that the claim is in “comprising” format, which does not exclude the
presence of other elements (Answer, pages 6-8). The appellant argues that this is a
misinterpretation of the Nicholls disclosure, for the movable lower portion does not
comprise the “entire basket” and therefore Nicholl’s “entire basket” is not movable with
respect to the frame, as is required by this claim.
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