Appeal No. 96-4055
Application No. 08/157,028
To the extent appellant is raising a Donaldson issue
with regard to claim 27, at the top of page 11 of the
principal brief, by arguing that Franke is "structurally and
functionally distinct from the method of claim 27,” we
disagree. Talking about “structural” distinctions has no
place in a method claim since no structure is recited and any
structure which would perform the recited method steps would
meet the claim language even though that structure may differ
from the structure contemplated by appellant for performing
the claimed method. With regard to any “functional”
distinction, claim 27 is not in “step-plus-function” language.
The claim merely recites ordered steps for performing the
method of imaging an object.
With regard to claim 28, this claim requires the
positioning of the sensing member within an oral cavity to
allow for positioning a tooth between the sensing member and
an extra-oral source of radiation. Appellant argues that this
differs from Franke since Franke discloses the source of
radiation to be within the oral cavity and the sensing member
to be outside of the oral cavity. While we agree that this is
a difference, we agree with the examiner that it is not a
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