Appeal No. 1999-0681
Application No. 08/697,478
cylindrical shape does not resemble a cone and thus may not be construed as having a
conical shape.4
Furthermore, appellant has not introduced sufficient evidence to establish that the
adjective “conical” or its adverbial counterpart “conically” has acquired a meaning in the
catalytic converter art to include cylindrical shapes or other non- conical shapes. With
regard to the cited Nara et al. Patent No. 4,279,864, the “[c]onverged ends 32a and 32b”
(column 1, line 21) are shown to be separate from the conical pipes 3a and 3b. Figure 3
of this patent does not relate to the prior art converter of Figure 1. Instead, Figure 3
illustrates a sealing member for the Nara et al. invention. Even if the term “conical” was
used in a misdescriptive sense in the Nara et al. patent to include “converged” (whatever
that may mean) ends or “diverged” ends, such misuse in a single patent does not establish
that “conical” is typically used in the catalytic converter art to include a cylindrical shape.
The Nara et al. patent is equivocal at best.
We are not unmindful of appellant’s reliance on In re Morris, 127 F.3d 1048,
1054-55, 44 USPQ2d 1023, 1027 (Fed Cir. 1997). However, this case supports our
position, not appellant’s position.
In Morris, 127 F.3d at 1056, 44 USPQ2d at 1029 the court observed that, with
regard to the claim language in issue, the appellant failed to make his intended meaning
“explicitly clear” (emphasis added). The Morris court went on to hold that interpreting
the claim language in light of the Morris patent specification was of no avail to the
appellant because the specification failed to set forth the definition now sought by the
4 In this context the word “shape” is used as a noun. It therefore is grammatically correct
to use the modifier “conical.”
4
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