Appeal No. 2003-0557
Application 09/121,760
arguments appear to be more specific than the actual recitations
of claim 1 on appeal anyway.
The feature in the preamble of claim 1 of the device
capturing raw image data of a live view subject is equally non-
distinguishing. The examples given at column 3, lines 18-36 of
Jamzadeh of the nature of the data received by the IDM 30
includes photographs of a family reunion and several close-up
shots of the photographer's graduating son, both of which
examples are clearly live view subjects to the extent recited in
the preamble of representative claim 1 on appeal.
Besides essentially teaching this feature, it is well stated
that a different intended use of the same structure as in the
prior art does not prohibit a statutory anticipation rejection,
for example. Indeed, it has been stated by our reviewing court
that "the absence of a disclosure relating to function does not
defeat the Board’s finding of anticipation. It is well settled
that the recitation of a new intended use for an old product does
not make a claim to that old product patentable (case citations
omitted)." In re Schrieber, 128 F.3d 1473, 1477, 44 USPQ2d 1429,
1431 (Fed. Cir. 1997). The court concludes at 128 F.3d 1477,
44 USPQ2d 1431-32, that "Schrieber’s contention that his
structure will be used to dispense popcorn does not have
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