Appellant does win a missing element argument in Ex parte Christain

The appellant did win one "missing element" argument in Ex parte Christian


The Examiner found with regard to claim 5 that Oyama’s “housing 4
has a rectangular shape (as shown in Fig. 1) with two openings 12, 13 for
slidably receiving the rod 17.” Ans. 4.5 However, claim 5 calls for the foot
mechanism to have a rectangular shape and an opening for slidably receiving
the rod, not the housing. Cf. Br. 17, Claims App’x, Claim 3; see also Br. 13.

Consequently, the Examiner has not made a finding that Oyama
discloses a foot mechanism having a rectangular shape and an opening for
slidably receiving the rod as called for in claim 5. As such, we do not
sustain the rejection of claim 5.




In re Bond is cited:


Such a
distinction does not persuasively demonstrate the finding is in error because
the nomenclature is not controlling. Cf. In re Bond, 910 F.2d 831, 832 (Fed.
Cir. 1990) (“The elements must be arranged as required by the claim, but
this is not an ipsissimis verbis test”). Appellants’ conclusory assertion does
not cogently explain how the Examiner’s finding is in error.



The appellant also won on claim 19:


The Examiner found that Oyama’s lever (locking piece 55 and
integral lever 56) has a flat rectangular shape at top board 40. Ans. 6.
Oyama’s top board 40 is the upper part of locking piece 5 of Example 1,
while locking piece 55 and integral lever 56 are part of Example 2. In
Oyama’s Example 2, locking piece 55 replaces locking piece 5, and locking
piece 55 is not described nor depicted as including top board 40. Oyama,
col. 6, ll. 47-51; figs. 6, 7. Thus, this rejection mixes two embodiments
without proposing a modification to incorporate the applicable portion of
each embodiment. Consequently, we do not sustain the rejection of claim
19.



The final tally


We affirm the Examiner’s decision to reject claims 1-4, 6, 8, 10-13,
15-17, and 20, and we reverse the Examiner’s decision to reject claims 5 and
19.