Appeal No. 1998-1735 Page 7
Application No. 08/339,980
USPQ2d 1451, 1454 (Fed. Cir 1993). As to the first requirement, even if one were to
consider that the Lenius system accomplishes the same function as the claimed system, it
does not do it using the same structure disclosed in the appellant’s specification. In this
regard, the appellant’s means for monitoring and adjusting comprises a sensor that
directly views the frost line and a controller that evaluates the position of the frost line
reported by the sensor and then, if necessary, adjusts the operation of either the air blower
or the motor turning the extrusion screw to cause the frost line to move up or down to the
correct location. However, in the Lenius system, the means for monitoring comprises
sensors that view the width of the tube prior to entering the shaping chamber, and the
means for adjusting is a controller that alters the supply of air that surrounds the tube in the
chamber to change the width of the tube at a point within the chamber, which action
causes the position of the frost line to move. Clearly, this is not the same structure as that
disclosed by the appellant.
While there is no litmus test for an “equivalent” that can be applied with absolute
certainty and predictability, there are several indicia that are sufficient to support a
conclusion of equivalency or non-equivalency. These include:
(1) Whether the prior art elements perform the function specified in the claim
in substantially the same way, and produce substantially the same results as
the corresponding structure disclosed in the specification. Odetics Inc. v.
Storage Tech. Corp., 185 F.3d 1259, 1267, 51 USPQ2d 1225, 1229-30
(Fed. Cir. 1999).
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