Measurement of Drawing Features
In the mechanical arts, Examiners sometimes rely only on the drawings of a reference to anticipate a claim. Such reliance is often acceptable when the drawings and
pictures clearly show the structure which is claimed (see MPEP § 2125). However, such reliance may not be acceptable when the drawings are used to support arguments
based on the measurement of the drawing features unless the reference discloses that the drawings are to scale or provides measurements. Where this is the case, it
may be possible to traverse the rejection as follows.
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Generally, drawings and pictures can anticipate claims if they clearly show the structure that is claimed (see MPEP § 2125, citing In re Mraz, 455 F.2d 1069
(CCPA 1972)). However, because this rejection relies on the measurement of drawing features in [CITED DOCUMENT], the Office Action must first determine whether the
drawings are to scale, and if the dimensions are described (see MPEP § 2125). When the cited art does not disclose that the drawings are to scale and is silent
as to dimensions, arguments based on measurement of the drawing features are of little value (see Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d
951, 956 (Fed. Cir. 2000) (The disclosure gave no indication that the drawings were drawn to scale. “[I]t is well established that patent drawings do not define the
precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue.”)). In this case,
[CITED DOCUMENT] does not disclose that the drawings are to scale, and is completely silent as to the dimensions. Because the section in support of the figures
in [CITED DOCUMENT] fails to support the Office Action’s positions, [CITED DOCUMENT] cannot anticipate each and every feature of claims [INSERT CLAIM NUMBER(S)].
Accordingly, it is respectfully submitted that the rejection is overcome and respectfully requested that the rejection be withdrawn.