Appeal No. 2004-1108
Application 09/756,833
The plain language of claim 1 specifies a “backpack” comprising at least the limitations
of any “rigid back support plate,” any “rigid bottom support plate” and any “continuous, flexible
sidewall” which have the characteristics specified for each of these structural components in the
claim. In this respect, we find that the “continuous, flexible sidewall” must “form an internal
storage volume” that “is specifically sized to receive and retain a conventional available, foldable
two-wheeled scooter,” and that the preambular language specifies that the claimed “backpack”
must be “specifically adapted to contain and carry a scooter vehicle.” We determine that when
the preambular language and the corresponding language in the body of the claim with respect to
the backpack being capable of containing and carrying and receiving and retaining any
conventional available, foldable two-wheeled scooter is considered in the context of the claimed
invention as a whole, including consideration thereof in light of the written description in
appellant’s specification, it must be given weight as a claim limitation which characterizes the
claimed “backpack” in order to give meaning to the claim and properly define the invention. See
generally In re Fritch, 972 F.2d 1260, 1262, 23 USPQ2d 1780, 1781 (Fed. Cir. 1992) (citing
Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 896, 221 USPQ 669, 675 (Fed.
Cir.), cert. denied, 469 U.S. 857 [225 USPQ 792] (1984), Corning Glass Works v. Sumitomo
Elec. U.S.A., Inc., 868 F.2d 1251, 1257, 9 USPQ2d 1962, 1966 (Fed. Cir. 1989), In re Stencel,
828 F.2d 751, 754-55, 4 USPQ2d 1071, 1073 (Fed. Cir. 1987).
Accordingly, appealed claim 1 encompasses any backpack having at least the three
specified structural components and an internal storage volume that falls within the range of
internal storage volumes based on the internal storage volumes necessary to “contain and carry”
and “receive and retain” the smallest to the largest conventionally available, foldable
two-wheeled scooter. We find no language in claim 1 or in the written description in the
specification which otherwise defines or describes all “conventional” scooters or the range of
internal storage volumes that will “contain and carry” and “receive and retain” such scooters.
Indeed, all that the claim language requires is that the backpack must have the capability to
“contain and carry” and “receive and retain” a “conventional” scooter, that is, receive, contain
and retain the scooter such that the scooter does not fall out of the backpack when the backpack
is reasonably carried. Thus, we find no basis in the language of appealed claim 1 or in the
- 4 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007