Appeal No. 2002-0747 Page 4
Application No. 09/006,982
(1)
The examiner has rejected claims 1-18 on the basis that the disclosed invention
is inoperative and therefore fails to comply with 35 U.S.C. § 1012 (Answer, page 4):
The examiner fails to see how all the elements of the apparatus can
rotate about . . . this axis and still be operative, [sic] won’t the hose
connecting the air flow device to the inlet port be torn off and wrap around
the outside of the cylindrical sleeve which defines this chamber? How
does [sic] the actuator & pulsatile devices rotate about this axis? Since
they are part of the apparatus they also rotate? Yes or no?
In the course of arriving at this conclusion, the examiner takes the position that the
phrase “can be rotated about,” which appears in independent claim 18, must be
interpreted to mean that the apparatus “is going completely around the axis and not
partially as set forth in . . . the specification.” The appellant counters by arguing that
neither the common definition of “rotated” nor this terminology as used in the
specification require that the apparatus rotate completely around the axis (Brief, page
7). We agree with the appellant that the definition of “rotated” does not require that the
apparatus rotate completely around the axis, but only that it rotate through an arc about
the axis. In this regard, we note on page 8 of the specification the explanation that the
chamber need rotate only through an arc of 180 degrees about the axis of air flow,
which in our view would have indicated to one of ordinary skill in the art that the
2 35 U.S.C. § 101 Inventions patentable. Whoever invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,
may obtain a patent therefore, subject to the conditions and requirements of this title.
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