Appeal No. 2005-1510
Application No. 09/883,279
done, the burden shifts to appellant to rebut this conclusion by
presenting evidence to prove that the disclosure in the
specification is enabling. See In re Doyle, 482 F.2d 1385, 179
USPQ 227 (CCPA 1973); In re Eynde, 480 F.2d 1364, 178 USPQ 640
(CCPA 1973).
In the present case, after reviewing the disclosure as set
for in the specification and the invention as seen in the
drawings of the application from the perspective of one of
ordinary skill in the art, and having considered the examiner’s
position as set forth on pages 3-6 of the answer, we are of the
opinion that the examiner has not met his burden of advancing
acceptable reasoning inconsistent with enablement. More
particularly, we are in agreement with appellant’s arguments in
the brief and reply brief that the examiner has misconstrued the
claim language “switching state” as being applicable to the
control system as a whole instead of to the position or state of
the switch (9) on the operating lever (3).
In our view the language of claim 1 on appeal itself makes
clear that the controller “tilts said mast when said operating
lever is tilted and said switch is in a first switching state” or
5
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007