In re Yanush

477 F.2d 958, 177 U.S.P.Q. (BNA) 705, 1973 CCPA LEXIS 353

• Court: Court of Customs and Patent Appeals
• Decided: May 17, 1973
• Docket: Patent Appeal No. 8951
• Status: Published

Opinions

MARKEY, Chief Judge.

This is an appeal from the decision of the Patent Office Board of Appeals rejecting, under 35 U.S.C. § 103, claims 1-6, 9, and 10 of application serial No. 678,045, filed October 25, 1967, for “Apparatus for Making Woolen Footwear and the Like.” We affirm.

THE INVENTION

The invention is clearly set forth in claim 1:

1. In apparatus for molding woolen footwear and the like, the combination of: a mold for receiving a quantity of wool soaked in an aqueous solution and including a first outer mold element having a boot-shaped cavity corresponding substantially to a first half of a boot to be molded in the apparatus, and a second outer mold element having a boot-shaped cavity corresponding substantially to a second half of a boot to be molded in the apparatus; an inner mold element having an external surface corresponding to the interior of the boot to be molded, and vibrating means positioned to engage at least one of said outer mold elements to cause said outer mold elements to vibrate and hammer against the soaked wool contents of said mold so as to cause the wool in said mold to assume a hard consistency suitable for footwear.

The remaining claims all depend on and stand or fall with claim 1.

THE PRIOR ART

The references were to Frieder et al., 287,492; Yanush, 3,067,467; Yanush, 2,-975,480; Ludwig, 3,160,921; Abbott, 3,-323,188. Frieder et al. disclose outer and inner mold elements and a vibrator means positioned to engage the mold and facilitate molding of mixtures of plastic and fibrous material. Yanush, 3,067,467, shows the claimed footwear mold, sans vibrator.

OPINION

Appellant’s sole argument is that his molding machine includes a component that “hammers” against the material in the mold. The result is a finished footwear product, an improvement over that of Yanush, 3,067,467, which required post-molding treatment. Appellant nowhere points to any distinction between the structure set forth in the appealed claims and that rendered obvious by Yanush, 3,067,467, and Frieder et al. Appellant disputes the board’s statement that “appellant would endow his claims with some of the characteristics of apparatus and other characteristics of the process of using that apparatus.” Yet his entire argument is directed to a process limitation, i. e. to the operation of a vibrator to “hammer” rather than to “settle” materials in a mold.

Appellant’s use limitation does not impart a structural feature different from those of the prior art. The last paragraph of 35 U.S.C. § 112, allowing an element to be expressed as a means for performing a function, cannot aid appellant. Frieder et al. disclose the same means (a vibrator) for accomplishing the hammering function. Appellant has not denied that the Frieder vibrator inherently possesses that capability. In re Ludtke, 441 F.2d 660, 58 CCPA 1159 (1971). Whether a vibrator is operated gently to settle materials in a mold or more forcefully to “hammer” them is a process limitation which does not limit or define the claimed apparatus.

We find no error in the board’s decision. Accordingly it is affirmed.

Affirmed.