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Combining references for a 103 rejection
Posted by James Spooner. updated on 12/26/2011
The Examiner has extracted physical elements from three references to build a 103(a) rejection of my simple mechanical device. Element A is identical to my corresponding element in physical shape and function; Element B is physically dissimilar, but functionally similar; Element C is identical in physical shape, but different in function. The references for A, B and C have other features that teach away from each other as well as my device.
Although identical in shape, the reference containing Element C teaches an entirely differenct function, and contains not even a hint to my function.
Question:
a. Is it proper to combine references that have contrary teachings even though isolated elements may be similar to the elements of the subject device?
b. Given that most mechanical devices are composed of elements that can be found in other devices, is it proper to combine the physical elements without considering the original functions?
Answers (2)
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James S...
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Although the claims contain some limiting functional wording, the dominant description is structural, so I will say they are apparatus claims. Also the Examiner's response is directed at structure.
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Smith John
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It depends on what type of claim you have in the application. Is your claim an apparatus claim or a method claim? To make things easier, what's the serial number of your application.
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