Appeal No. 2003-058
Application 09/390,190
and removed from the sealing carriage as a unit and (2) to
comprise two support members installable on bridge assemblies of
the sealing carriage such that zipper seal facings and jaw
facings attached to the support members are located approximately
equidistant from the axis of the force vectors transmitted from
the bridge assemblies to the support members during sealing
operations. The examiner’s contention that Malin’s cross seal
jaws could be installed or removed as a unit has no factual
support in the teachings of the reference. Similarly, the
dismissal by the examiner of the force vector limitations in the
claim as not being entitled to patentable weight because they are
functional in nature has no basis in law.4
Thus, Malin does not disclose each and every element of the
reclose module recited in claim 1. Accordingly, we shall not
sustain the standing 35 U.S.C. § 102(b) rejection of claim 1 as
being anticipated by Malin.
In addition to being unresponsive to the foregoing
limitations in independent claim 1, Malin, by the examiner’s own
4 There is nothing intrinsically wrong with the claim
drafting technique of using functional language to define
something by what it does rather than by what it is. In re
Hallman, 655 F.2d 212, 215, 210 USPQ 609, 611 (CCPA 1981); In re
Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971).
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