Appeal No. 2003-0491 Page 4
Application No. 09/584,173
[t]he reel (32), arm (30), and base (12) of Smoluk form an
area or open space defined therebetween that is capable of
receiving and holding a fishing pole therein. Similarly as
appellant’s holder (40) receives the pole in a slanted
position, the rod holding structure of Smoluk is capable of
receiving the rod in a slanted position. Appellant has not
recited the particulars with regard to the pole holding
member in such a manner which overcomes the Smoluk
reference. Appellant has not particularly claimed the pole
holding means comprising an outwardly extending bar
defining a notch therein for receiving the pole in
combination with a fishing pole. It is the Examiner’s
position that the Smoluk reference meets the limitation of
pole holding means since the structure of Smoluk is
perfectly capable of performing the functional language as
recited.
The examiner’s position with regard to the pole holding means limitation is not
well taken. From our perspective, one of ordinary skill in the art viewing the Smoluk
disclosure would not consider the base 12, arm 30 and spool 32 to define a pole
holding means. We note further that claim 1 recites a pole holding means to support a
fishing pole therein, which is limited, under the provisions of the sixth paragraph of 35
U.S.C. § 112, to the structure described in appellants’ specification and equivalents
thereof. The examiner has not pointed out the corresponding structure described in
appellants’ specification for performing the pole holding function and has not explained
either how the referenced structure in Smoluk responds to such structure or the basis
for concluding that it is an equivalent thereof.
To anticipate, every element and limitation of the claimed invention must be
found in a single prior art reference, arranged as in the claim. Karsten Mfg. Corp. v.
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007