Appeal No. 2006-2280 Page 10
Application No. 10/244,011
C. Carpenter
The examiner rejected claims 1, 3-6, 10, 11, 12, 14-16, 19-21 and 23-28
under 35 U.S.C. § 102(b) as being anticipated by Carpenter. The examiner
determined that Carpenter discloses a flexible pad of a strip of material (7) having
hook and loop fastener (9) to form a sleeve on the shaft of a cane and is capable of
sliding on the shaft of the cane and thus inherently could be located above the
center of gravity of the cane when supported vertically against a surface. The
examiner further determined that the strip of material (7) of Carpenter would
inherently frictionally engage an edge or curved surface when the cane is leaned on
the edge or curved surfaces. Answer, p. 4.
The appellant argues claims 1, 3-6, 10, 11, 12, 14-16, 19-21 and 23-25 as
one group (Brief, p. 13) and argues claims 26-28 as another group (Brief, p. 14).
We select claim 23 as a representative claim of the first group and claim 26 as a
representative claim of the second group. 37 C.F.R. § 41.37(c)(1)(vii) (2006).
With regard to claim 23, the appellant argues that Carpenter does not
disclose an attachment having an exterior surface for frictionally engaging an edge
or curved surface. The appellant argues that the exterior surface of the strap (10)
of Carpenter is used to facilitate engagement with a hook (4) connected to a chain
(6), which is in turn mounted on the belt of the cane user. Brief, p. 13.
The issue for an anticipation determination is not what Carpenter teaches for
the use of the strap; the question is whether the exterior surface of the attachment
of Carpenter is capable of the claimed use. The examiner took the position that the
strip of material (7) of Carpenter is capable of and would inherently frictionally
engage an edge surface when leaned against such surface. We agree. Although
the perpendicular strap (10) of Carpenter is used to hook the cane to the user’s belt,
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