Appeal No. 2005-1510
Application No. 09/883,279
“lifts or lowers said fork when said operating lever is tilted
and said switch is in a second switching state,” and “prevents
lifting and lowering of said fork when said switch is changed
from said first switching state to said second switching state
while said operating lever is tilted” (emphasis added). The
specification, pages 3-6, in our view, confirms this
understanding of the claim language. Thus, appellant’s
characterization of the claim language as noted on pages 5 and 6
of the brief and in the reply brief is correct and resolves the
enablement issue before us on appeal.
Accordingly, after a careful consideration of appellant’s
disclosure and of the arguments on both sides, it is our opinion
that the level of skill in this art is sufficiently high that the
ordinarily skilled artisan would have been able to make and use
appellant’s claimed invention as set forth in the claims on
appeal based on appellant’s disclosure and without the exercise
of undue experimentation.
For the above reasons, we will not sustain the examiner's
rejection of claims 1 and 2 under 35 U.S.C. § 112, first
paragraph, as being based on a non-enabling disclosure.
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