Appeal No. 97-2606 Page 7
Application No. 08/017,568
circumferential flange is constructed as an integral, one-
piece unit with the stem portion or the intermediate portion.
Feiler discloses a proximal cement sealing plug for a hip
prosthesis. The sealing plug 2 is shown in Figures 10 and 11.
The hip prosthesis is shown in Figure 14. Figure 17 shows the
hip prosthesis and sealing plug implanted in the proximal
femur.
The appellants argue (brief, pp. 6-8, and reply brief,
pp. 1-3) that Feiler does not disclose the recited "seal
means" since the structure of Feiler cannot prevent leaking of
cement therefrom during implantation of the prosthesis.
Specifically, the appellants point out that Feiler lacks any
structure equivalent to their resilient rear seal member 55.
We agree. The examiner's position (examiner's answer to reply
brief, p. 2) that the seal member 55 is not part of the
claimed subject matter because it is a separate piece used in
combination with the prosthesis 10 is unpersuasive for the
following reasons. Under 35 U.S.C. § 112, paragraph 6, an
element in a claim expressed as a means for performing a
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