Appeal 2007-2027
Application 10/210,269
Lukens discloses an athletic cup with a “rigid [outer] member
ha[ving] a plurality of holes 56 to receive material from the resilient
member. The holes allow a portion of the resilient member 12 to be molded
up through the rigid member 14” (Lukens [0028]; see also Lukens’ Figure 6,
showing rigid outer member and holes 56).
Thus, the rigid outer portion of Lukens’ cup has the apertures, or
“openwork,” present in a cage. We therefore agree with the Examiner that
the recitation “shaped as an open cage” encompasses the apertured structure
of Lukens’ cup, when that language is given its broadest reasonable
interpretation. Moreover, because the apertures 56 “receive material from
the [underlying] resilient member” (Lukens [0028]), we agree with the
Examiner that Lukens’ cup meets the limitation in claim 1 that the “hard
portion includ[es] a plurality of open interstices across said face, whereby
said primary portion extends into said interstices.”
Appellant argues that the Examiner’s references are from non-
analogous arts because Jacobs’ device is a mouth guard and Lukens’ device
is an athletic cup (Br. 6). Appellant argues that mouth guards and athletic
cups function differently, because “[i]n a cup, the outer portion takes the
force of the impact and the inner portion prevents the impact from being
transferred to the body. In a mouth guard, there is only one portion to take
the force of the impact” (id. at 6-7). Appellant concludes that therefore “one
skilled in the art would not look at a two piece athletic cup and modify it
with the material from a single piece mouthguard, particularly since the
mouthguard is designed to absorb impact and only the outer portion of a cup
absorbs impact” (id. at 7).
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Last modified: September 9, 2013