Interference No. 101,981
broadest reasonable interpretation and the one that is representative of the common subject
matter between the interfering applications, Hurwitz v. Poon, 364 F.2d 878, 881, 150 USPQ 676,
67818 (CCPA 1966), it should be done in light of the application that provides the most generic
perspective – and here that is Batlogg’s.
Moreover, after reviewing the parties’ applications, we observe that, while no application
recites “purity”, only Batlogg discloses a percentage (spec., p. 5, lines 21-25). As a result,
Batlogg’s specification provides us with the best guidance for interpreting the count. The most
relevant statements that Batlogg makes are these:
Materials of the invention are essentially single phase. By this it is meant that the materials
herein are single phase 95 mole percent as determined by powder x-ray diffraction. The
particular value, 95 percent, is chosen as corresponding with the expected measurement
precision of ordinary apparatus-procedures.
Since this passage suggests that the purity of the superconductive material is determined by the
single phase amount, it is consistent with the APJ’s earlier determination and therefore lends
further support to a broad interpretation of the count.
Finally, we find that the interpretations Beyers and Qadri are advocating – that the
18 “Our review of the applications convinces us that the inventions
of the two parties are indeed the same, and that the examiner, in
proposing a count that was representative of the common subject
matter, chose what was to be taken as a reasonably generic term to
cover the various resins. It is not inconsistent that a generic
term form the basis of a common count while the parties each resort
to somewhat different Markush terminology.”
26
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: November 3, 2007