Appeal No. 96-2179 Page 15
Application 07/613,466
transitional phrases. The figures also appear to be8
identical, right down to the misspelling of "exercise".
29. As we have noted, otherwise identical hardware that
is programmed differently constitutes different structure.
The corollary of this axiom is that identical hardware
identically programmed is structurally identical.
Consequently, we find the means in the appealed claims to
correspond identically to the means in Callaghan '497.
30. Nappholz teaches self-adapting with respect to
minute volume. (3:2-52.) Nappholz would have provided
motivation to a person having ordinary skill in the art to
exploit the inherent self-adapting functions of
Callaghan '497's means 50, even though that function was not
explicitly claimed in the '497 patent.
31. We see no reason why the preceding fact finding
should not be true for the steps of appealed claims 38-61 as
well. The means of Callaghan '497's claims 1-17 perform the
steps of appealed claims 38-61 and thus would have rendered
those steps at least obvious.
8 Indeed, it is disturbing that most of the
differences are cosmetic variations at the beginning of the
disclosures. Such variation, if done for the purpose of
obscuring the relationship between the disclosures, is
ethically suspect. See Berg, ___ F.3d at ____ n.7,
46 USPQ2d at 1231 n.7.
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