Appeal 2007-0870
Reissue Application 09/902,904
Patent 6,038,784
boss member projecting up for the upper face of the tray and a plurality of
disk receiving slots defined in the boss member (Br., 34).
ii. the Examiner's position
The Examiner contends that Son elements 14, 19, 20 or 16 are the
claimed "bottle support means" and that Son elements 19 or 20 are the
claimed "disk holding means" (Answer, 18).
c. analysis
According to Appellants' Specification (col. 3, ll. 3-5), "[e]ach of the
pegs 18 is sized and arranged so as to be able to support an article, such as a
baby bottle, after washing and rinsing" (Specification, col. 3, ll. 3-5). Thus,
Appellants' Specification describes a peg as a "bottle support means." As
noted above (§C.1.c.(iv)), Appellants' Specification describes a boss member
with slots raised with respect to an underlying reservoir as a structure as
corresponding to a "disk holding means."
Son discloses an equivalent "bottle supporting means," i.e., fingers 15
adapted to support hubs regardless of their size or shape. However, in order
for Son to anticipate the subject matter of claim 19, Son's disclosed fingers
15 must be capable of supporting a baby bottle. The Examiner has not
provided a sufficient basis for the finding that Son's fingers 15 necessarily
have that capability. Probabilities or possibilities are insufficient to establish
anticipation. Continental Can Co., 948 F.2d at 1269, 20 USPQ2d at 1749.
Similarly, assuming without deciding that the upwardly disposed tabs 19
with notches 20 therein are equivalent "disk holding means," the Examiner
has not established that they can hold baby bottle disks as required by claim
19.
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