Appeal No. 2004-0193 Page 5
Application No. 09/165,272
portion 123 is of a size, T, so as to allow the dispensing of articles carried by the tabs 50
through the slots 52 provided therefor. Flexible portion 123 is made of a flexible
material so that portions 121 and 122 may be inclined to allow the articles stored on
portion 121 to move toward the left end as viewed in Figure 5 by the force of gravity.
The appellant argues (supplemental brief, pp. 9-10) that (1) claim 32 is directed
towards an article segregating device for open-ring type articles which comprises a
guide member decreasing in cross-section at a selected location along a conveying
path in which selected articles fall off the guide member at the selected location; and
(2) there is no article segregating device in the vending machine of Joschko and there is
no structure that segregates open-ring type articles by having only selected articles fall
off the guide member at the desired location.
The examiner's response to this argument (answer, p. 5) is that
clearly there is no segregating in the claim language of claim 32 or is there any
segregating structure as argued. The "selected location" as claimed would be at
the vending position in Joschko. Furthermore, claim 32 only discusses a single
selected location, so there really is no segregating claim 32.
"[A] claim preamble has the import that the claim as a whole suggests for it."
See Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d
615, 620, 34 USPQ2d 1816, 1820 (Fed. Cir. 1995). Where an appellant uses the claim
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