Appeal No. 2003-0550
Application No. 09/580,411
is true that during use of the die cutter apparatus in Carll in a
cutting operation, the die cutter units (14) are fixed in an
adjusted position by tightening of the bolts (32), we remain of
the view that the structure in Carll would broadly be understood
by one of ordinary skill in that art to constitute a "lost motion
connection" like that set forth in claim 1 on appeal, at least
during the set-up phase for the die cutter apparatus. In that
regard, we agree with the examiner's assessment on page 6 of the
answer that
the only difference between the two inventions is how
they are intended to be used. Carll discloses that the
die cutting units are locked in position during use,
while the die cutting units of the present invention
are free to move during use. However, there is no
structural difference between the claimed invention and
the invention of Carll, thus the difference amounts to
a functional recitation of intended use, and as is well
established in patent law, a functional recitation of
intended use cannot serve to distinguish a claimed
apparatus/device over the prior art. Further, it is
noted that there is nothing in Carll which prevents it
from being used in the manner described by appellant.
For example, by simply not tightening the screws 32,
Carll is exactly the same as the claimed invention. No
modification of the structure disclosed by Carll is
required. This loosened state is clearly present in
Carll during adjustments, but also could be present
during use of the device if a user chose to do so.
Also, it is noted that there is nothing preventing the
adjustment members of the present invention from being
tightened down to lock the die cutting units in place
and thus used in the same manner as the die cutting
units of Carll. A structural difference between the
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