Appeal No. 1998-0531
Application 08/464,489
The central issue in this appeal is the weight to be
accorded the preamble recitation in claim 28 that the claimed
heating apparatus is “for heating a repair site on a composite
structure to a substantially uniform temperature of at least
about 300EF.” The examiner contends that “[t]he recitation of
heating to ‘at least about 300EF’ [is] not [to be] given
patentable weight since it is found in the preamble of the
claim” (second answer, page 5). Appellants argue on page 2 of
the second reply brief (Paper No. 15) that claim 28
“positively defines an operating temperature for the apparatus
of at least about 300EF,” that “[t]he claim must be read as a
whole and no part of the claim can be ignored or disregarded,”
and that Feldman’s heating appliance for attachment around the
appendage of a patient “simply is not the structure that
Applicant describes and claims in claim 28.”
Whether a preamble or introductory clause of a claim
constitutes a limitation on a claim is a matter to be
determined by the facts of each case in view of the claimed
examiner’s discretion, such as objections to the drawings, are
not subject to our review. Rather, such matters may be
resolved by petition to the Commissioner under 37 CFR § 1.181.
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