Appeal No. 2005-1510
Application No. 09/883,279
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims,
and to the respective positions articulated by appellant and the
examiner. As a consequence of our review, we have made the
determination that the examiner’s rejection under 35 U.S.C.
§ 112, first paragraph, will not be sustained. Our reasons
follow.
In rejecting claims 1 and 2 under 35 U.S.C. § 112, first
paragraph, the examiner has urged that the specification fails to
provide an enabling disclosure. More particularly, the examiner
contends that:
“[t]he second switching state is first said to
enable lifting and lowering of the forks of a
forklift truck. See the passage starting on line
10 starting with "that lifts..." and ending on
line 11 with "in a second switching state". The
next passage of the claim states that the lifting
and lowering of the fork is not enabled while the
switch is in the second switching state. Since the
specification is not enabling for the second
switching state to both enable and disable the
lifting and lowering of the forks, it is not
possible for the examiner to determine the
intended scope of the claim. Claim 2 is also
rejected as being dependent upon an unenabled
claim. As the scope of claim 1 is not able to be
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