Appeal No. 2005-0354
Application No. 09/399,412
citing McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578, 27 USPQ2d
1129, 1131 (Fed. Cir. 1993) .
Further, as pointed out by our reviewing court, we must first determine the scope
of the claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d
1362,1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998). Therefore, we look to the
limitations set forth in independent claim 1. Here, we note that the preamble of
independent claim 1 sets forth “a method of achieving a minimum stopping distance for
a freight train consist” wherein a computer on the train is preprogrammed with
information including “velocity dependence of wheel to rail adhesion.” The computer
determines a pressure that can be applied to the brake cylinder which will substantially
maintain maximum adhesion between wheels being braked and rail surfaces in contact
with the wheels such that braking energy is substantially evenly distributed to all of such
wheels being braked.
The examiner maintains that the combination of Cook as modified by Fourie
would have suggested the invention as recited in independent claim 1. Appellant
argues that the teachings of Cook with respect to a magnetic levitation (mag-lev) train
do not teach or fairly suggest the invention as it relates to a freight train having wheels
which run on rails. (Brief at pages 9-11.) Appellant argues that the mag-lev trains do
not operate with wheels in contact with rails and therefore are not concerned with the
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