Appeal 97-1458
Application 08/329,940
Brief, page 7). According to counsel, "nitro" means "any of
various nitrated products" and "nitrated" as treated or
combined with nitric acid or a nitrate. Counsel goes on say
that:
although the compound lacks an NO group, it could
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have been formed by reaction with nitric acid or a
nitrate. The term "nitroalkane" therefore would not
be inappropriate.
A first reaction is that again counsel is making argument
without evidence--and, the argument somewhat is based on
speculation (i.e., "could have been formed ***"). At the time
the appeal reached the board, there was no evidence of how
C F NO sold as PF-5052 by 3M is, or was, made. A second
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reaction is that use of a dictionary to define a technical
term is curious at best. Compare Anderson v. International
Engineering and Manufacturing Inc., ___ F.3d ___, ___, 48
USPQ2d 1631, 1634 (Fed. Cir. 1998) (definitions in
dictionaries all reflect common usages of "away," and
reinforce the observation that dictionary definitions of
ordinary words are rarely dispositive of their meaning in a
technological context. A word describing patented technology
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