Appeal 2006-2166
Application 10/727,442
We are unpersuaded by Appellant’s arguments for the reasons
discussed below.
We begin our analysis by construing Appellant’s claim term “log.”
We look to Appellant’s Specification for guidance in our construction of the
claim term “log.” Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d
1321, 1329 (Fed. Cir. 2005). In his Specification, Appellant describes a
“log” as “typically between twelve inches and twenty four inches long,
typically [has] . . . a diameter between one inch and two inches, and
typically [has] . . . a generally cylindrical shape” (Specification 3).
Appellant further states that “. . . [the] logs are preferably cut from the
lower, healthy, branches of an Alder, [a] Beech or [a] Birch tree, although
logs cut from upper branches may also be used” (emphasis added)
(Specification 3). With regard to the “log” diameter range, we construe the
term “typically” to mean the “log” diameters usually fall within the
disclosed diameter range (i.e., one inch to two inches), but the “log”
diameters may be less than or greater than the disclosed end points (i.e., one
inch or two inches, respectively) of the “log” diameter range.
From Appellant’s disclosure discussed above, we construe the claim
term “log” to mean a portion of a tree branch that “typically” has a diameter
from one to two inches, however, the branch diameter may be less than one
inch or greater than two inches.
We note that Appellant defines “shoot” in his Specification.
Appellant defines “shoot” as “tissue that grows from any portion of an Alder
log, [a] Beech log or [a] Birch log that has meristematic activity”
(Specification 2). Appellant further states in his Specification that “[s]hoots
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