Appeal No. 2004-1293
Application No. 09/989,330
II. Claims 12, 13, 28, & 29: Gillinder, DiLernia, & Gates
Appealed claims 12, 13, 28, and 29 depend from either claim
1 or claim 18 and recite that at least a portion of the
receptacle of the plant display is shaped to resemble an animal
(claims 12 and 28) or a vegetable organism (claims 13 and 29).
While the examiner relies on additional prior art references in
the form of DiLernia and Gates for teachings relevant to
limitations further recited in appealed claims 12, 13, 28, and
29 (answer, page 4), these references do not cure the basic
deficiency in the examiner’s rejection of independent claims 1
and 18. Accordingly, we reverse for the same reasons set forth
above in our discussion of rejection I.
III. Claim 17: Gillinder and Satterlee
It is well settled that, in proceedings before the United
States Patent and Trademark Office (PTO), claims in an
application are to be given their broadest reasonable
interpretation, taking into account the written description
found in the specification. In re Morris, 127 F.3d 1048, 1054,
44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d
319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989)(“During
patent examination the pending claims must be interpreted as
appear to be no excuse for not positively including the
reference in the statement of rejection.”).
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