Appeal No. 2004-1635
Application No. 10/083,915 Page 6
differs from the structure taught by Wright. Absent such a
special definition, we interpret the claimed step for climbing as
requiring structure as recited in claim 1 which is useful as a
rest for a “foot in ascending or descending”1.
Consequently, even though we agree with appellant that the
claim preamble and “sufficient to perform . . .” functional
language must be given some weight in determining the scope of
the claims, we do not find in that claim language a requirement
that the step is constructed to support the full weight of a
particularly sized person, such as the person schematically
depicted in drawing figure 7, while the step is located a
significant distance off the ground as illustrated in drawing
figure 7. In this regard, appellant has not established that the
hanger of Wright would not be capable of serving as a step for
resting the foot of a creature such as a bird or squirrel that is
in the process of climbing. Nor do the appealed claims exclude
such. Moreover, the loop portion of the representative claim 1
step is open to being in a position resting on the ground or some
other surface for a person to step onto. Thus appellant’s
arguments and the declaration of Mr. Schlais with respect to 50
1 See Webster’s II New Riverside University Dictionary
(1984), page 1136. Also, see page 8 of the reply brief.
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