Appeal No. 2006-1562
Application No. 10/720,948
thickness as Appellant’s device (i.e. one quarter inch or
greater).
Because the patch thickness disclosed by Arnold may be the
same as disclosed by Appellant, it is reasonable to consider
Arnold’s eye patch as inherently capable of performing
Appellant’s vision-interference functions recited in claims 1
and 10.
While claim 1 refers to positioning the device on an
individual’s face generally, claim 10 recites that the vision-
training device is placed specifically on the cheeks under the
eyes of the individual. However, the recitation in claim 10
that the device is placed on the cheeks is considered to be an
intended use of the device. With device claims, we are
concerned with the structure and functional capability of the
device, not how the device is used. See, In re Schreiber,
128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997)
and Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter.
1987). Arnold’s patch reasonably appears to be capable of being
applied, via its adhesive, on a cheek under an eye of the user.
The patch, so positioned, would inherently interfere with the
user’s vision as claimed since the patch has the same thickness
and would be at the same location as Appellant’s claimed device.
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