Appeal No. 97-0032
Application No. 08/095,295
structure for performing that function, the structure disclosed
in the specification must be considered, and the patent claim
construed to cover both the disclosed structure and equivalents
thereof"). Thus, in my view both the statute and our reviewing
court mandate application of the statutory claim interpretation
where the language of the claim invokes it.
Additionally, the application of the sixth paragraph is a
matter of claim construction. Claim construction is a question
of law which is reviewed de novo. Donaldson, 16 F.3d at 1192, 29
USPQ2d at 1848; Kalman v. Kimberly-Clark Corp., 713 F.2d 760,
771, 218 USPQ 781, 789 (Fed. Cir.), cert. denied, 465 U.S. 1026
(1984). I therefore believe we are not bound by or in anyway
obligated to adopt an erroneous construction of the claimed
subject matter simply because the examiner and applicant appear
to agree upon it. Indeed, in Iwahashi the Federal Circuit
applied the sixth paragraph in deciding the appeal although it
had not been briefed or argued during the proceedings in the PTO
or briefed to the Court. Iwahashi, 888 F.2d at 1375, 12 USPQ2d
at 1911-12.
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