Appeal No. 2003-1439
Application No. 09/896,112
The examiner also states that it would have been obvious to
one of ordinary skill in the art to configure the invention of
Thomas to accommodate any animal suffering a muscle spasm, cramp,
bruise, tear, sprain, or strain, including a horse. (Examiner’s
Answer, page 3, lines 14-17). We agree with this statement.
However, obviousness and anticipation are different beasts.
The examiner did not alternatively reject these claims under
35 U.S.C. §103(a); consequently the question as to whether or not
the modification to fit a horse would have been obvious is not
germane to the anticipation question. The limitations “sized to
fit over a horse”, “a strap secured to the main panel that secures
the main panel to a horse” and “a plurality of ice pockets
attached to each of the side sections of the main panel” do
differentiate over Thomas - we see no embodiment which is capable
of being placed over a horse, held in place with a strap, and
which also shows a plurality of ice pockets attached to each of
the side sections of the main panel.
The examiner also urges that the preamble is not given
patentable weight because the claim is drawn to a structure and
the portion of the structure following the preamble is a self-
contained description of the structure. While we agree with this
interpretation of the claim, we again note that the body of the
claim contains the limitations of being sized to fit the back and
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