Appeal 2007-0337
Application 09/996,200
invention set forth in claims 4, 5, 12, 19, 20, 27, 33, and 36. We reach the
opposite conclusion, however, with respect to claims 6 and 21. Accordingly,
we affirm-in-part.
Language of Claim 31
Before turning to the merits of the appeal, we first address a
discrepancy in the language of claim 31 as presented in the Brief and the
Examiner’s Answer. The Examiner alleges that claim 31 in the Brief’s
Evidence Appendix is erroneous in reciting “‘the first image being related to
an area on a distortion grid’” since the Amendment filed Dec. 29, 2003 does
not contain this limitation. The Examiner then rewrote the claim omitting
the limitation (Answer 3).
Based on the record before us, we will not adopt the Examiner’s
version of claim 31 as rewritten in the Answer and will presume the version
as presented in the Brief is correct. Although the Examiner is correct
regarding the Dec. 2003 Amendment, the language of claim 31 filed with a
subsequent Amendment contains the disputed limitation. See Amendment
filed Apr. 15, 2004. Although the inserted limitation did not strictly comply
with Amendment format requirements (i.e., the added text was not
underlined), it was nevertheless entered into the record as of the Apr. 2004
Amendment. Significantly, Appellant argued in the accompanying remarks
that the prior art did not disclose a distortion grid – a feature recited in the
newly-added limitation of claim 31. See Remarks Accompanying Apr. 2004
Amendment, at 9. Furthermore, Appellant referred to the amended version
of claim 31 in an earlier-filed Brief that the Examiner acknowledged as
correct. See Brief filed Oct. 12, 2004, at 20 (including disputed limitation in
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