Appeal No. 2006-2280 Page 11
Application No. 10/244,011
the strap (7) that is securely encircling the elongate shaft of the cane is, when put to
the intended use of leaning it against an edge or curved surface, capable of
frictionally engaging that edge or surface. Further, the top of the strap (7) is
secured about the cane shaft by a “rubbery O-ring”. Carpenter, col. 1, lines 36-37
and col. 2, lines 2-5. We find that the rubbery O-ring attachment to the cane shaft
would certainly frictionally engage the edge or curved surface to keep the cane
supported with the bottom end resting on walking surface, as claimed. As such, we
sustain the examiner’s rejection of claims 1, 3-6, 10, 11, 12, 14-16, 19-21 and 23-
25 under 35 U.S.C. § 102(b) as being anticipated by Carpenter.
With regard to claim 26, the appellant argues that the claim is directed to the
combination of a crutch and a pad and that Carpenter is directed only to canes and
not to crutches. We agree. In order for a reference to anticipate a claimed
invention, each and every element of the claim must be disclosed in a single
reference. We find that claim 26 positively recites the crutch as part of a claimed
combination, and there is no disclosure in Carpenter of applying the strap (7) to a
crutch. As such, we do not sustain the examiner’s rejection of claims 26-28 under
35 U.S.C. § 102(b) as being anticipated by Carpenter.
We find it necessary, however, to enter a new ground of rejection of claims
26-28 under 35 U.S.C. § 103(a) as being unpatentable over Carpenter in view of
U.S. Patent No. 4,300,742 to Hunn. Carpenter teaches that the purpose of its guard
device is to enable a user to retrieve a cane if it is accidentally misplaced or
dropped. Carpenter, col. 1, lines 21-24. Carpenter recognizes that “[m]any
individuals who require the help of a cane when walking do not have the ability to
recover a cane when it is accidentally dropped or misplaced.” Carpenter, col. 1,
lines 9-11. Carpenter does not, however, disclose attaching this guard to a crutch.
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