Appeal No. 2002-2319 Page 13
Application No. 09/129,197
free of localized pressure points as called for in claim 10 and appellant has not offered
any reasoning or evidence to show that Ackley lacks such inherent capability.4
For the foregoing reasons, appellant’s arguments fail to persuade us of any error
in the examiner’s determination that claim 10 is anticipated by Ackley. Thus, we shall
sustain the rejection of claim 10 and claim 11 which appellant has grouped therewith
(brief, page 6).
Appellant’s arguments with regard to the rejection of claim 19 as being
anticipated by Ackley are substantially the same as those discussed above with regard
to claim 19. As pointed out in our discussion of the rejections of claim 19 under 35
U.S.C. § § 112 and 101, supra, claim 19, like claim 10, is directed solely to a sling.
Appellant concedes that “the body parts [referred to in claim 19] do not constitute an
‘integral component’ of the claim, but only points of reference for defining the structure
of the sling when it supports an arm” (brief, page 7). Our conclusions above with regard
to the inherent capability of Ackley’s sling to be applied to an arm of a patient 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
4 After the PTO establishes a prima facie case of anticipation based on inherency, the burden
shifts to the appellant to prove that the subject matter shown to be in the prior art does not possess the
characteristics of the claimed invention. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed.
Cir. 1985); In re King, 801 F.2d 1324, 1327, 231 USPQ 136, 138 (Fed. Cir. 1986).
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