Appeal No. 1999-2030 Page 5
Application No. 08/423,077
localization system comprising, inter alia, a light source; an
optical fiber having a tip; a connector for connecting the
optical fiber to the light source; and means for retaining the
tip of the optical fiber within tissue. Claims 18 to 20
depend from claim 17.
The examiner determined (answer, p. 3) that independent
claims 1 and 17 are "clearly anticipated by Kolff." In
response to the appellant's argument, the examiner states
(answer, p. 4) that Kolff teaches an optical fiber which is
inserted in a catheter which includes a balloon which can be
considered a retaining means.
The appellant argues (substitute brief, pp. 10-16) that
Kolff does not teach the claimed retaining means. We agree.
In that regard, we note that the claimed retaining means is
expressed in means-plus-function format. As explained in In
re Donaldson, 16 F.3d 1189, 1193, 29 USPQ2d 1845, 1848-49
(Fed. Cir. 1994), the PTO is not exempt from following the
statutory mandate of 35 U.S.C. § 112, paragraph 6, which
reads:
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