Monday, June 17, 2013

Ex parte Shen on "intended use or purpose"

from Ex parte Shen

It is well established that “[a]n intended use or purpose usually will not limit the scope of the claim because such statements usually do no more than define a context in which the invention operates.” Boehringer Ingelheim Vetmedica v. Schering-Plough Corp., 320 F.3d 1339, 1345, (Fed. Cir. 2003). Thus, an apparatus capable of performing an intended use will anticipate an apparatus claim, even if the prior art does not disclose that the apparatus was actually put to the intended use recited in the claim. See In re Schreiber, 128 F.3d 1473, 1477(Fed. Cir. 1997). Accordingly, we agree with the Examiner that the structure disclosed by Moore is capable of conforming with a frontal surface of a ball cap as claimed.


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