Appeal No. 2003-1272 Page 31
Application No. 10/039,338
same result, as the disclosed structure. A key feature that
distinguishes "equivalents" under section 112, paragraph 6
and "equivalents" under the doctrine of equivalents is that
section 112, paragraph 6 equivalents must perform the
identical function of the disclosed structure, while
equivalents under the doctrine of equivalents need only
perform a substantially similar function [citations omitted].
Kemco Sales, Inc. v. Control Papers Co., 208 F.3d 1352, 1364, 54 USPQ2d 1308,
1315-16 (Fed. Cir. 2000). I note, in this regard, that the recited function in the "traction
means" limitation of claims 18 to 22 and 25 is simply "traction" or "providing traction"
and does not require either line contact or traction without doing damage to the turf or
puncturing golf turf. Accordingly, even the prior art spikes which are a point or a circle,
mentioned on page 7 of appellants' specification and expressly distinguished from the
ribs/ridges of appellants' invention, and the mini-spikes in the video showing mentioned
supra appear to perform the recited function of providing traction, in substantially the
same way, to achieve substantially the same result, as the disclosed ribs/ridges. They
would thus appear to be "equivalents" of the traction ribs described in appellants'
specification under 35 U.S.C. § 112, sixth paragraph, under the test announced by
Kemco, thereby falling within the scope of the "traction means" limitation of claims 18 to
22 and 25, but are not supported by appellants' original specification as required by
35 U.S.C. § 112, first paragraph. Further, the presentation of broad recitations, such as
"protrusions," "traction members" and "traction elements" in claims 26, 27 and 34 would
also point to a broader scope to "traction means" than simply ribs/ridges as defined in
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