Appeal 2007-0817
Application 10/992,253
“The Patent and Trademark Office (“PTO”) determines the scope of
claims in patent applications not solely on the basis of the claim language,
but upon giving claims their broadest reasonable construction ‘in light of the
specification as it would be interpreted by one of ordinary skill in the art.’
In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 [70 USPQ2d 1827,
1830] (Fed. Cir. 2004).” Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75
USPQ2d 1321, 1329 (Fed. Cir. 2005).
ANALYSIS
The outcome of this case hinges on the construction of the claim
language that the first and second paths are independent. This limitation is
found in independent claim 1 and independent claim 35, the only
independent claims on appeal.
According to the Examiner, “[e]ven though the arc 86 is shown and
disclosed as ‘the same arc’ that the propeller arrangement follow[s], the path
that the right propeller unit follows is different than the path that the left
propeller unit follow[s].” (Answer: 4). The best that can be said for the
Examiner’s argument is that the propellers of Betsinger subtend discrete or
different angles on the same arc or path 86.
Appellant argues that “first and second independent paths” should be
construed as discrete, separate or otherwise independent arcs or paths on
either side of the boat (Appeal Br. 4). In our view, Appellant’s construction
does not violate the ordinary or customary meaning of “path” as a track or
route along which something travels. Inasmuch as propellers 16 and 18 of
Betsinger travel along the same track or route even though they have
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Last modified: September 9, 2013