Appeal No. 1998-2823
Application No. 08/458,010
lack antecedent basis because only electromagnetic or infrared
energy
is described in the original disclosure, we agree with
appellants’ argument (main brief, pp. 16-17) that the original
disclosure of electromagnetic energy (see, e.g., original
claim 1) and infrared energy (see, e.g., original claim 10)
provides descriptive support for the noted terminology.
As to the terminology “first position,” appellants argue
that the term is used to define a location to which
electromagnetic energy is communicated. As explained at page
3 of the reply brief:
[s]upport for Appellants’ use of the term “first
position” is thus found in the specification as
originally filed on page 3, lines 25-27, where
Appellants, describing Figure 2, state that “the
waveguide is generally cylindrical in shape and
extends axially through the heat sink 20 for
communication of infrared energy from the
temperature source to the infrared detector.” This
clearly indicates that infrared energy is being
communicated from a temperature source, such as a
patient, to another location, which Appellants have
identified in the claims as a “first position.”
We agree with appellants that the terminology “first position”
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