Monday, November 26, 2012

Appellant loses on obviousness in Ex parte Weik

Within Ex parte Weik is a discussion of analysis of claims to an apparatus:

Further, to the extent that Appellant is arguing that Parsadayan fails to disclose a control system that evaluates the sequence of actions to determine the direction of movement, Appellant’s argument is unconvincing. The Examiner correctly identifies these limitations as statements of intended use and reasonably finds that Parsadayan’s control system is capable of performing this function stating “by sensing that the gate has not returned to a closed position before a second vehicle is sensed by the loop detector, this constitutes a sequence of events as well as direction of travel.” Id. Appellant has not provided sufficient evidence or arguments to establish this finding is in error. See, e.g., In re Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997) (claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function.

Within Appellant's brief:

Parsadayan does not disclose, either explicitly or inherently (i.e., not just possibly and not just probably, but necessarily), the following positively recited features of claims 4 and 5:


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