Appeal 2006-1042
Application 10/208,131
In further support of their position, Appellants argue that
[a] position more consistent with the express
teaching of Barut would be that the upper and
lower pleating sections (7, 8) are moved vertically
relative to each other in accordance with the
vertical movement disclosed by Barut to increase
or decrease the vertical spacing therebetween to
thereby accommodate webs of different
thicknesses. For a thicker web, for example, the
nuts that hold each of the four rods supporting
either one of the upper and lower pleating sections
(7, 8) on the brackets (12) must all be loosened and
the vertical position of all four rods (and hence the
pleating section) can be changed simultaneously.
Thus, all of the upper pleating sections (8) can be
moved vertically with respect to the lower pleating
sections (7) (or visa versa) to accommodate
various web thicknesses [Reply Br. 4-5].
We have carefully reviewed the record on this appeal and based
thereon find ourselves in agreement with the Examiner that the apparatus of
appealed claim 1 for forming folds is anticipated by the reference to Barut.
It is well settled that, if a prior art device inherently possesses the
capability of functioning in the manner claimed, anticipation exists
regardless of whether there was recognition that it could be used to perform
the claimed function. In re Schreiber, 128 F.3d 1473, 1477,
44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997). While Appellants argue that
there is no express disclosure of the pleating sections of Barut’s apparatus
being pivotable about a rotation axis of one of the rods, an inference of
inherency is supported by the Examiner’s reasoned analysis of how the
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