Appeal No. 2004-1322
Application No. 10/014,297
is not capable of performing this function. Thus, absent
structure which is capable of performing this function, Maurer
does not meet this aspect of the appealed claims. See In re Mott,
557 F.2d 266, 269, 194 USPQ 305, 307 (CCPA 1977).
In short, notwithstanding the Examiner’s opposing viewpoint,
it is clear that the timing device of Maurer is incapable of
satisfying the functional requirement of the Appellants’ claimed
timer. This deficiency of Maurer is not supplied by the other
applied references, and the Examiner does not contend otherwise.
It follows that we cannot sustain either the § 103 rejection of
claims 1-10 and 16-21 as being unpatentable over Maurer in view
of Willner or the § 103 rejection of claims 11-15 as being
unpatentable over these references and further in view of Bennett.
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