Appeal No. 2003-1379
Application No. 09/769,334
indicated supra. Thus, it can be inferred from the Allen
disclosure that its open cell polyurethane foam provides some
resistance to deformation as required by the claims on appeal.4
Second, we find that the open cell foam taught by Allen
appears to be either identical or substantially identical to
those embraced by the claims on appeal. We find that the open
cell foam taught by Allen, like the claimed open cell foam, is
made with polyurethane and is useful for absorbing, inter alia,
physical energy as indicated above. Thus, the burden is on the
appellant to prove that the open cell polyurethane foam taught by
Allen is not capable of performing the claimed function. In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1432 (Fed. Cir.
1997); In re Best, 562 F.2d 1252, 1255-56, 195 USPQ 430, 433-34
(CCPA 1977); In re Swinehart, 439 F.2d 210, 212, 169 USPQ 226,
228 (CCPA 1971). However, the appellant on this record has
4 Our review of claims 1, 5 and 8 on appeal indicates that
they do not recite any specific degree of resistance to
deformation, thus inclusive of any degree of resistance to and/or
control of deformation. See In re Morris, 127 F.3d 1048, 1054, 44
USPQ2d 1023, 1027 (Fed. Cir. 1997)(During prosecution of a patent
application, we give words in the claims their broadest
reasonable meaning in their ordinary usage, taking into account
the written description found in the specification.).
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007