Appeal No. 1999-1483 Page 7
Application No. 08/732,887
oriented at 180 degrees to each other. 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).
(2) Whether a person of ordinary skill in the art would have recognized the
interchangeability of the elements shown in the prior art for the
corresponding elements disclosed in the specification. Al-Site Corp. v. VSI
Int'l Inc., 174 F.3d 1308, 1316, 50 USPQ2d 1161, 1165 (Fed. Cir. 1999).
(3) Whether the prior art elements are the structural equivalents of the
corresponding elements disclosed in the specification. In re Bond, 910
F.2d 831, 833, 15 USPQ2d 1566, 1568 (Fed. Cir. 1990).
(4) Whether there are insubstantial differences between the prior art
elements and the corresponding elements disclosed in the specification.
IMS Technology, Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1436, 54
USPQ2d 1129, 1138-39 (Fed. Cir. 2000).
As a result of our review, we have determined that there is nothing in the record which
would support answering any of the above questions in the affirmative. This being the
case, we conclude that the prior art structure does not qualify as being an equivalent under
35 U.S.C. § 112, sixth paragraph, of the structure disclosed by the appellant in the
specification.
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