Appeal No. 2003-1272 Page 10
Application No. 10/039,338
example). Preferably, the ridges are about as wide at their base as they are high.
The ridges may be straight or curved in planes parallel to the shoe sole, and they
may be chords, diameters, or radii of the bottom surface of the disklike flange 12.
Preferably, the ridges are between about 0.03125" and 0.125" high. Preferably,
the flange's bottom surface has 8 crescent shaped ridges.
The phrase "traction means" encompasses the corresponding structure
described in the specification5, i.e., the traction ribs, and equivalents thereof. In our
view, the meaning of "equivalents" is well understood in patent law and an applicant
need not, and in fact can not, describe in his specification the full range of equivalents of
his invention, some of which may be nonexistent at the time the application is filed.6
See In re Noll, 545 F.2d 141, 149, 191 USPQ 721, 727 (CCPA 1976), cert. denied, 434
U.S. 875 (1977).
5More properly, the written description of the application. See Hester Indus., Inc.
v. Stein, Inc., 142 F.3d 1472, 1483, 46 USPQ2d 1641, 1650 (Fed. Cir. 1998); Dawn
Equip. Co. v. Ky. Farms Inc., 140 F.3d 1009, 1014, 46 USPQ2d 1109, 1112 (Fed. Cir.
1998).
6We agree with the appellants that equivalents under the sixth paragraph of
35 U.S.C. § 112 are, by definition, never disclosed in the application. While an
application may disclose one preferred embodiment to perform a function as well as
numerous equivalent ways of performing that function, under 35 U.S.C. § 112, sixth
paragraph, the corresponding structure includes both the one preferred embodiment to
perform a function and the numerous equivalent ways of performing that function.
Thus, equivalents under the sixth paragraph of 35 U.S.C. § 112 to a means for
performing that function includes both equivalents of the one preferred embodiment that
performs the function and equivalents of the numerous disclosed equivalent ways of
performing the function.
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