Appeal No. 2003-0539
Application No. 09/188,702
brief to the effect that the “adapted to mate with . . .”
limitation of the appealed claims distinguishes over Glickman’s
Figure 25 connector because the holes of the Figure 25 connector
are not disclosed as mating with the fingers of a connector rod is
not persuasive.3
Summary
The obviousness rejection of claims 6-12 as being unpatentable
over Glickman is reversed.
Pursuant to 37 CFR § 1.196(b), a new anticipation rejection of
claims 6, 7 and 9-11 has been entered.
This decision contains a new ground of rejection pursuant to
37 CFR § 1.196(b). 37 CFR § 1.196(b) provides that, “[a]new ground
of rejection shall not be considered final for purposes of judicial
review.”
37 CFR § 1.196(b) also provides that the appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the
following two options with respect to the new ground of rejection
3See, for example, In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1431-32 (Fed. Cir. 1997) (manner in which claimed
device is intended to be employed does not differentiate claimed
device from prior art device satisfying structural limitations of
claim.) and In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226,
228-29 (CCPA 1971) (regarding functional language and statements
of intended use, it is sufficient that prior art structure be
capable of performing recited function or use).
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