Appeal No. 2002-2319 Page 12
Application No. 09/129,197
elbow or that the panel has a lesser length than the patient’s arm measured from the
elbow end to the hand (brief, page 12).
It is critical to note that claim 10 is directed solely to a sling and not to a method
of sizing or applying the sling to a patient’s arm. All references to the patient’s body
parts in claim 10 simply serve to define the intended use of the recited sling. It is well
settled that the recitation of an intended use for an old product does not make a claim
to that old product patentable. In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d
1429, 1431 (Fed. Cir. 1997). While it is true that Ackley’s sling is not specifically
disclosed for use in the manner recited in claim 1, Ackley’s sling appears reasonably
capable of being applied to the arm of an appropriately sized patient3 such that the
length of such patient’s arm from the elbow end to the knuckles is longer than the
distance from the portion of the tubular member engaging the outer elbow (the closed
aft end) to the shaping insert 28 of the puppet-like head and so that the tubular member
is stretched from the elbow end to the hand end and the insert 28 engages the patient’s
fingers to thereby limit movement of the sling toward the elbow end, thereby permitting
the tubular member to evenly engage the patient’s elbow, arm and hand substantially
3 The sling is illustrated in Figure 4 applied to the arm of a child. If applied to a larger child or to
an adult with a longer arm, the dimensional relationships with the arm and stretch of the panel called for in
claim 10 would seemingly result. That Ackley’s sling may not be capable of fitting all patients in the
manner called for in claim 10 is of no moment, as claim 10 does not require this.
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