Appeal No. 1998-2169
Application No. 08/610,069
brief). The examiner is not persuaded by appellant’s
explanation and reasons that “[s]tating that the
photoconductor is ‘used’ in the apparatus does not clearly
recite
that the photoconductor has the capability for such use.
Rather, the claims state that the photoconductor is actually
used in the apparatus” (page 6 of answer).
While the examiner is technically correct that the claim
language “states that the photoconductor is so used not that
it has the capability for this use” (page 6 of answer), we
find that one of ordinary skill in the art, based on the
present specifi-cation and file wrapper estoppel associated
with appellant’s statement that claim 18 recites a functional
limitation and not an apparatus, would understand that the
scope of claim 18 is limited to the organic photoconductor
defined in claim 1 which has the capability of being used in
an electrophotographic apparatus.
Turning to the § 103 rejection, the examiner recognizes
that JP ‘010 doses not disclose the claimed index of surface
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