Appeal 2007-0694
Reexamination Control 90/006,433
Patent 5,428,933
¶ 2). Mr. Philippe testifies that one of ordinary skill in the art understands
that there is an “inherent variability in the manufacturing process” for
forming insulating blocks, such as that described by the ‘933 patent. (Id. at
¶ 10). Mr. Philippe testifies that one of ordinary skill in the art would have
understood that the claimed “substantially the same dimension” refers to:
[T]he same dimension with minor variations, or intended to be
the same dimension but permitting and including variation
implicit in manufacturing processes.
(Id. at ¶ 11). Mr. Philippe testifies that, for a foamed block manufacturing
process, the form will generally shrink by about 1.0 to 2.0 % as it cures. (Id.
at ¶ 4).
The Examiner considered Mr. Philippe’s declaration but did not find it
persuasive. (Answer at 12). The Examiner states that Patentee has failed to
define a range for “minor variations” and that the language “minor
variations” is not in the claims on appeal. (Answer, p. 10). Instead, the
Examiner states that the term “substantially” is defined in the 10th Edition of
Webster’s Dictionary as “being largely but not wholly that which is
specified.” (Id.).
In determining the broadest reasonable interpretation of the term
substantially, we have evaluated and weighed Mr. Philippe’s declaration as
well as the Webster Dictionary definition provided by the Examiner. In
evaluating the evidence, we note that there is no magic formula or rigid
algorithm for determining the amount of weight to be given a particular
general source dictionary, such as Webster’s. Phillips at 1324, 75 USPQ2d
at 1334-1335. The principle focus of claim construction however, is on
understanding how a person of ordinary skill in the art would understand the
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