Appeal No. 2004-0389 Page 6
Application No. 09/853,339
Each of the solid steel plates forming supplementary wall supports 21, shown in
Figure 8 of Gschwendtner, comprises a steel sheet “presenting a continuous planar
exterior surface,” as called for in claim 1. We note that claim 1 does not require that the
steel sheet be free of passages or discontinuities but simply that it present a continuous
planar exterior surface. Gschwendtner’s solid steel plates forming wall supports 21
clearly comprise portions which present continuous planar surfaces, such as the
portions above and below and between the passage openings 22, for example.3
Appellants may be correct that Figure 1 simply schematically shows an outside
cover over the truss structure of Figure 2. This, however, does not alter our view that
the supplementary wall supports 21 of Figure 8 meet the limitations of claim 1 with
regard to the steel sheet module. Moreover, it is immaterial that only the
supplementary wall support of Figure 8 is formed from a solid steel plate (see brief,
page 6), as claim 1 does not preclude the presence of additional structure in the rise.4
Appellants also argue that escalator drive machines have typically been located
under landings, not along the rise, and that Gschwendtner lacks any showing of an
3 We recognize, as pointed out by appellants on page 7 of their brief, that the steel sheet
illustrated in appellants’ Figure 11 is not depicted as having any openings or passages therein. We are
also aware that an important feature of appellants’ invention is that it is “a closed design that eliminates
the need for exterior cladding” (specification, page 2). We also note that several embodiments of that
invention (see Figures 2-7, for example), do comprise openings in the stamped modules and are,
nonetheless, presumably also considered to be “a closed design” inasmuch as appellants’ specification
does not single out the embodiment of Figure 11 as being the only “closed design” embodiment.
4 Specifically, claim 1 recites that “said rise includes at least one module wherein the module
comprises a steel sheet.” The transitional terms "comprises" and “includes” are inclusive or open-ended
and do not exclude additional, unrecited elements. See In re Baxter, 656 F.2d 679, 686, 210 USPQ 795,
802 (CCPA 1981); Ex parte Davis, 80 USPQ 448, 450 (Bd. App. 1948)("comprising" leaves "the claim
open for the inclusion of unspecified ingredients even in major amounts").
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007