Appeal No. 2004-2072 Page 6
Application No. 10/036,678
that a tool can be received into the openings and utilized to manipulate the wedge
portion relative to the brace member are not disclosed by Brendel.
The examiner asserts (answer, pp. 12-13) that:
Brendel shows the brace portion 12 having an opening (area circumscribed by
element 14) and also shows the wedge portion 9 having an opening 10 (see
figures 1-4). Brendel further shows the openings being situated (see figure 3)
such that a tool can be received by them for manipulating the wedge portion 9
relative to the brace 12. Importantly, opening 10 is shown as an elongated slot
having a bolt 11 situated therein. Even when, as Appellant argues, the Brendel
device is "locked in position'' as shown in figure 3, the openings are situated
such that a tool can be received by them for manipulating the wedge portion 9
relative to the brace 12. That is, a tool can be used to manipulate the bolt 11
such that it slides within the opening 10 (see column 5 line 58 - column 6 line 6),
allowing relative movement between the wedge 9 and the brace 12.
ln the alterative, the Examiner points out that the bolt 11 may properly be
considered a "tool'' which can be received in the openings, thus allowing for the
wedge portion 9 to be manipulated, relative to the brace 12 (see figures 1-3).
This alternative understanding also anticipates the claim as currently recited.
The language of claim 26 requires that the opening of the brace member and the
opening of the wedge portion be capable of being situated such that a tool can be
received into the openings and utilized to manipulate the wedge portion relative to the
brace member. In our view, when the Brendel device is positioned as shown in Figure
3, the openings are situated such that a tool can be inserted therein, however, there is
no certainty that such a tool so positioned is capable of manipulating Brendel's wedge
portion 9 relative to his brace member 12 as pointed out by the appellants in their
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Last modified: November 3, 2007