Appeal No. 2002-2206 Page 4
Application No. 09/054,211
accommodate a few hairs, the device comprising a planar base having a plurality of
apertures, each aperture sized to receive and closely fit one of the plurality of teeth.
Franklin (Figure 10) discloses a comb provided with a device (cleaning member 15b)
having a planar base 16b, the base having a plurality of slots 17 made of the same size
and spacing as are the teeth of the comb. Appellant argues that the subject matter of
claim 13 is not anticipated by Franklin because “the teeth of Franklin’s comb are
relatively widely spaced, accommodating more than a few hairs between each pair of
teeth” (brief, page 3) and that, hence, the slots 17 of Franklin’s cleaning member are
likewise relatively widely spaced and thus cannot respond to the apertures recited in
claim 13.
Appellant is correct that, notwithstanding that the comb and its teeth are not
positively recited as part of claim 13, the recited relationship of the apertures of the
device of claim 13 to the teeth of the comb does structurally limit the recited device. In
particular, claim 13 calls for the apertures to be sized to receive and closely fit a
plurality of teeth having separations therebetween sized to accommodate a few hairs. It
is our opinion, however, that the slots of Franklin’s cleaning member meet this
limitation. First, we note that appellant’s claim 13 does not require that the apertures be
sized to receive and closely fit teeth having separations therebetween sized to
accommodate only a few hairs. Appellant expressly concedes on page 3 of the brief
that the teeth of Franklin’s comb, and hence the apertures of the cleaning device, are
spaced to accommodate more than a few hairs therebetween. It thus follows that they
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