Appeal No. 2006-1748 Παγε 6
Application No. 10/728,375
Appellant also argues that the Sutton device is limited to a device having first and
second plate portions disposed at a 45 degree angle and thus does not meet the
recitation in claim 1 that the device having first and second plate portions have a spaced
relation so that they are disposed from 45 degrees to 85 degrees apart.1
We do not agree with the appellant that the Sutton device is limited to plates
disposed at a 45 degree angle because as we discussed above, Sutton discloses that
the device disclosed can be changed so as to have different dimensions and shapes. In
addition, Sutton’s Figure 10, appears to depict a device having first and second plate
portions disposed at an angle greater than 45 degrees. As such, Sutton suggests a
device having first and second plate portions disposed at an angle greater than 45
degrees. In any case, the disclosure in Sutton of a device having plates disposed at a
45 degree angle is sufficient to meet the limitations in the claim because 45 degrees is
included in the claimed range of 45 degrees to 85 degrees.
In view of the foregoing, we will sustain the examiner’s rejection of claim 1. We
will also sustain the examiner’s rejection of claims 2 to 8, 12, 14 and 15 because the
1 We note that the claim language in claim 1 and claim 4 that the first and second plate portions
are disposed to form a substantially right angle about a central point of from 45 to 85 degrees is unclear.
An angle that is 45 to 85 degrees is not a right angle. As such, the claims on appeal do not appear to
meet the requirements of 35 U.S.C. § 112, second paragraph.
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