Appeal No. 2006-0912
Application No. 10/081,575
of a consumer as set forth in the presently claimed
invention. ... The device in the ‘254 reference is
“fire-extinguisher” like and not even remotely designed
to dispense beverage into the mouth of a consumer.
Thus, the dispositive question is whether the claimed
functionally defined dispenser would have rendered the claimed
pressurized beverage product structurally different from those
described in the prior art references. On this record, we answer
this question in the negative.
As our reviewing court stated in In re Schreiber, 128 F.3d
1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997):
A patent applicant is free to recite features of an
apparatus either structurally or functionally. See In
re Swinehart, 439 F.2d 210, 212, 169 USPQ 226, 228
(CCPA 1971)(“[T]here is nothing intrinsically wrong
with [defining something by what it does rather than
what it is] in drafting patent claims.”). Yet,
choosing to define an element functionally, i.e., by
what it does, carries with it a risk. As our
predecessor court stated in Swinehart, 439 F.2d at 213,
169 USPQ at 228:
where the patent Office has reason to believe
defined to mean a beverage capable of emitting small bubbles of a gas...” Thus, the term
“effervescent beverage,” as used in the claims on appeal, includes the carbonate beverage
discussed in Guardia and the beverage, e.g., beer, containing gas in solution discussed in Ash.
See the specification, pages 5, 6 and 8 for beverages capable of emitting small bubbles of a gas.
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