Appeal 2007-0870
Reissue Application 09/902,904
Patent 6,038,784
cannot be ignored when a claim is before the PTO any more than when it is
before the courts in an issued patent."). Thus, in order to meet a means-plus-
function limitation, the prior art "must (1) perform the identical function
recited in the means limitation and (2) perform that function using the
structure disclosed in the specification or an equivalent structure." Carroll
Touch, Inc. v. Electro Mechanical Sys., Inc., 15 F.3d 1573, 1578, 27
USPQ2d 1836, 1840 (Fed. Cir. 1993).
1. Are claims 2, 4-7, 9, 22-26, and 29 unpatentable under
§ 102(b) as anticipated by Slipp?
As a preliminary matter we note that Appellants have grouped claims
5-7, and claims 23-26 together with independent claims 4, and 22,
respectively, upon which they directly depend. Appellants have not
separately argued the patentability of claims 5-7 or 23-26. Therefore, the
patentability of claims 5-7, and 23-26 stands or falls with the patentability of
claims 4 and 22, respectively. 37 CFR § 41.37(c)(1)(v).
Claim 29 stands on a different footing because it depends from claim
27 which depends from claim 22, and, therefore, incorporates all the
limitations of both claims 22 and 27. 35 U.S.C. § 112, fourth paragraph.
Since the Examiner does not contend that claim 27 is anticipated by Slipp, it
follows that the Examiner has not shown that claim 29, which incorporates
the limitations of claim 27, is anticipated by Slipp. We, therefore, reverse
the rejection of claim 29 under 35 U.S.C. § 102(b) as anticipated by Slipp.
a. Slipp
Slipp describes a collapsible drying rack (p. 1, ll. 10-11) comprising
13
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