Appeal 2006-3282
Application 09/683,353
forefront. Considering the latter phrase first, we consider
whether “configured to hold a compound…” is a “…mere
direction of activities to take place in the future, or whether the
language imparts a structural limitation …” to the stick housing.
(See In re Venezia, 189 USPQ 149, 151 (CCPA 1976)). We
find that the language does impart structure to the housing,
namely sufficient structure to hold something. The claim,
however, does not recite the thing that is held, namely a
“compound which melts…” as an element of the claim.
(Appose this to claim 2, which does positively recite indicator
sticks, and has not been rejected.) The elements of the claim
thus include two housings, each positioned specially and
configured to hold something. Consider, now, the preamble
which recites “A dual temperature indicator stick assembly
comprising…” The Kossnar reference discloses a dual pen
holder, with elements corresponding to all of the claimed
elements in claims 1, 3 and 6, as applied by the Examiner. We
find the recitation in the claim preamble of “A dual temperature
indicator stick assembly comprising …” to be merely a
statement of the purpose and intended use of the assembly. The
assembly recited in the structure of the claims is found in
Kossnar, albeit holding a different type of writing utensil.
Specifically we find in Kossnar a teaching of longitudinal
member 20a (and 20b) with curved ends (at 46) to hold the
housings of the writing utensils. This teaching is also applicable
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