Appeal No. 2006-2280 Page 14
Application No. 10/244,011
The examiner responded that the claim does not preclude a surface having a
complimentary hook or loop. The examiner determined that Crusor’s hook and
loop patch would provide frictional engagement when the cane is disposed on the
walking ground and leaned against an edge surface, because even a smooth
contacting surface would provide some degree of friction depending on the edge
surface material or the weight of the cane or crutch. Answer, p. 8.
With regard to the appellant’s argument that Crusor does not teach leaning
the cane against a corner or edge, for the same reasons provided supra in Section
II.A., we hold that such a teaching is not required for an anticipation rejection as
long as the structure disclosed in Crusor is capable of performing the recited
function of frictionally engaging the edge or curved surface to keep the crutch or
cane supported with the bottom end resting on a walking surface. As such, we do
not find the appellant’s argument about the lack of teaching in Crusor to be
persuasive.
With regard to the appellant’s argument that the attachment disclosed in
Crusor would not frictionally engage an edge, but rather would slide against the
edge, we must define the phrase “frictionally engage” to resolve this issue. The
examiner has taken a broad interpretation of frictionally engage that is satisfied by
virtually any material attached to a cane or crutch, because such material will
inherently frictionally engage an edge when the cane is leaned against it so that the
material attached to the cane comes in contact with the edge. The degree of
frictional engagement will vary depending, for example, on the material attached to
the cane and the weight of the cane.
We determine the scope of the claims in patent applications “not solely on
the basis of the claim language, but upon giving claims their broadest reasonable
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