Appeal No. 2004-1250
Application No. 09/760,400 Page 6
While claim 1 provides that the housing of the vibratory
generator is sized to ‘accommodate’ a child of preschool age or
an infant, appellant has not fairly explained how that allegedly
“functional” size limitation of the generator housing serves to
distinguish the claimed generator housing over the generator
housing of Chung. In this regard, the housing of the claimed
invention and the prior art are each constructed for holding the
vibration generator not a child.1 For purposes of this appeal,
the claimed ‘accommodation’ limitation is construed to relate to
an intended use of the device with a child or infant and does not
serve to restrict the size of the claimed vibration generator
housing to any particular size that differentiates over the
disclosure of Chung.
In a case such as this where the critical limitation that is
argued as establishing novelty for the claimed subject matter is
recited, at best, as a functional characteristic that reasonably
appears to be a characteristic of the prior art structure insofar
as broadly called for in the representative appealed claim based
on the correspondence in structure between the representative
1 In the event of further prosecution of this subject matter
before the examiner, the examiner should determine whether or not
the claims are in compliance with the first and second paragraphs
of 35 U.S.C. § 112 given the functional size limitation
associated with the main housing that was added by amendment.
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