Appeal No. 2007-0382
Reexamination 90/007,172
be defined as: “[u]ninterrupted in time, sequence, substance, or extent” or “[o]f or
relating to a line or curve that extends without a break or irregularity.” (Evidence
Appendix attached to the Appeal Brief.) We find that every point on Cole’s PVC
covering may be connected to any other point on the covering by an imaginary line
without any break or interruption. Hence, Cole’s PVC covering is in fact
“continuous” as that term would be understood by one skilled in the relevant art.
Under these circumstances, we agree with the Examiner that the claim terms (“a
continuous layer that substantially covers...the compressible structure”), given their
broadest reasonable construction taking into account the specification, encompass
the type of PVC covering described in Cole.
The Patent Owner would also have us believe that the outer coating would
not be continuous unless formed by dipping or immersing the insole into a vinyl
polymer. But neither the appealed claims nor the specification provides any basis
to limit the invention in this fashion. Here, the Patent Owner has proffered no
evidence to demonstrate that a structural (chemical or physical) difference
necessarily exists between a layer formed by dipping or immersing the insole into a
vinyl polymer and a layer as described in the prior art.
The Patent Owner argues that the reexamination Examiner had previously
agreed during interviews that Cole does not teach a continuous layer and that the
examiner “should not be permitted to change the meaning of a term at such a late
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