Appeal 2007-3962
Application 10/005,846
The Examiner has, in interpreting the claim, divorced the word “dry”
from “stretching” and ignored the specific meaning those two terms, when
used together, were meant to have as evidenced by the Specification and as
understood by those in the membrane art as evidenced by Kesting. “It is
well established that when a general term is used to introduce a concept that
is further defined more narrowly, the general term must be understood in the
context in which the inventor presents it.” In re Glaug, 283 F.3d 1335,
1340, 62 USPQ2d 1151, 1154 (Fed. Cir. 2002). Here, Appellants present
the phrase in the context of how the pores are formed: They are formed by
the stretching of a polyolefin film with aligned microcrystalites formed by
the specific extrusion and annealing process described in Kesting. The
resulting structure is shown in Kesting Figure 8.6. The Examiner has not
established that extracting the plasticizer of Kondo would result in the “dry
stretched” structure claimed.
III. CONCLUSION
We sustain the rejection of claims 1-8 as unpatentable over Kondo, but
do not sustain the rejection of claims 9-11 over that reference.
IV. DECISION
Accordingly, the decision of the Examiner is affirmed-in-part.
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