Appeal No. 2006-2280 Page 6
Application No. 10/244,011
thus the limitation is not vague just because there are many different sizes of
crutches and canes. Accordingly, we do not sustain the examiner’s rejection of
claims 1-14 under 35 U.S.C. § 112, second paragraph.
II. Rejections under 35 U.S.C. § 102(b)
The examiner rejected claims 1-7, 10-12, 14-16, 19-21 and 23-28 under 35
U.S.C. §§ 102(e) and 102(b) over various references. The appellant argues
generally that none of the cited references discloses a pad having “an exterior
surface for frictionally engaging an edge or curved surface to keep the crutch or
cane supported at an angle to the vertical with the bottom end resting on a walking
surface.” Brief, p. 11. We address each rejection in turn.
A. Shrader
The examiner rejected claims 1 and 12-14 under 35 U.S.C. § 102(e) as being
anticipated by Shrader. The appellant argues the rejected claims as a group. Brief,
p. 12. As such, we select claim 1 as a representative claim. 37 C.F.R.
§ 41.37(c)(1)(vii) (2006).
The examiner found that Shrader discloses a flexible pad (20) having
adhesive (11) on one surface to be connected to the other opposing surface, as
shown in Figure 4, when the pad forms the tube, and wherein the adhesive has a
removable patch (12). Answer, p. 3. The examiner further determined that
although Shrader refers to a jacket for a cable, it is capable of being mounted on a
crutch or a cane and the exterior surface of the jacket is capable of frictional
engagement with an edge or surface. Answer, p. 7. The examiner correctly noted
that a recitation of intended use of the claimed invention must result in a structural
difference over the prior art in order to overcome an anticipation rejection, and if a
prior art structure is capable of performing the intended use, then it meets the
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