Appeal No. 2004-1250
Application No. 09/760,400 Page 5
and (5) an attachment means (straps depicted in Figure 1 and
described at column 3, lines 5-8) for securing the portable
vibratory device to a seat or other surfaces that corresponds to
the structure of the like attachment means as recited in
representative claim 1. See pages 3 and 4 of the answer.
We are not persuaded by the arguments advanced by appellant
in the briefs before us. We note that representative claim 1 is
drawn to a “portable, vibrating relaxation device for an infant
or child” that is “specifically configured to accommodate use in
a crib, bassinet, playpen, stroller, car seat or other surface”
(underlining supplied). Chung clearly describes a vibratory
massaging apparatus in the form of a covered cushion that is
configured for use on a automobile seat or other surface. See
column 2, lines 53-58 of Chung. Whether or not a child of
preschool age or an infant is positioned so as to enjoy the
cushion of Chung, which clearly is constructed to accommodate a
person, including such an infant or child, is irrelevant since
the subject matter of representative claim 1 is drawn to the
device not a particular use thereof. See In re Self, 671 F.2d
1344, 1350-1351, 213 USPQ 1, 7 (CCPA 1982) (when the claim does
not recite allegedly distinguishable features, “appellant[s]
cannot rely on them to establish patentability.”).
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