Appeal No. 1998-0389 Page 6
Application No. 08/576321
that it would operate in the manner required by the “means” recitation in the appellants’
claims. Finally, the examiner made the statement that the appellants were merely using the
structure disclosed by Benz in a different manner, a distinction that could not be relied
upon for distinguishing the claimed apparatus from the prior art (Answer, pages 4-5); in
view of the shortcomings we have pointed out above, this conclusion simply is not
supported by evidence.
For the reasons set forth above, it is our view that the evidence adduced by the
examiner fails to establish that the prior art structure discloses or teaches the means-plus-
function structure recited in the appellants’ claims. This being the case, the rejection of
claims 1-9 and 12-14 as being anticipated by Benz cannot be sustained.
Remand To The Examiner
As we noted above, the examiner stated that Benz disclosed two induction heating
systems for controlling the heat applied to the melted material, but that one of those was
mentioned in the text but not shown in the drawings or described in the disclosure.
However, in reviewing the record before us, we noted that U.S. Patent No. 5,348,566,
which is in the same area of technology and was mentioned by the appellants on page 7 of
2
the specification, discloses two such systems. In fact, there is a striking resemblance
2This patent has been cited as a reference against the claims in appellants'
application serial number 08/537966, which presently is before the Board of Patent
Appeals and Interferences, awaiting decision.
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