Interference No. 103,414
this design was developed by adding the additional step at the
insertion end of the pre-existing rivet (Statement of Facts, ¶ 6)
suggests that the shank of the pre-existing rivet consists of two
cylindrical portions with diameters of 0.531" and 0.500" joined
by a tapered portion.5 Moreover, there is no testimony or
document suggesting that the shank of the pre-existing rivet
consists of two cylindrical portions of different diameters
without an intermediate tapered portion. As a result, we do not
agree with Henry's characterization of the pre-existing rivet as
a "two-stage" rivet or his argument that it is distinguishable in
that respect on that basis from Ellis's three-stage rivet and
from Ellis's partially tapered rivet, which Henry describes as a
"three-stage rivet with a tapered middle stage" (H.Br. 6).
E. The scope and meaning of the count
Because the shank of the pre-existing rivet on which
Henry relies consists of two cylindrical portions of different
diameters joined by an intermediate tapered portion, it is not
necessary to decide whether the count is broad enough to read on
a rivet having a shank consisting of two cylindrical portions of
different diameters without an intermediate portion, as urged by
Henry. Nevertheless, in the interest of completeness we have
considered that question and conclude that the answer is yes.
To construe the count we must look at the
language as a whole and consider the
grammatical structure and syntax. Credle v.
5 These 0.531" and 0.500" diameters are also the diameters
given in the preliminary statement sketch.
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