Appeal No. 2002-0652
Application No. 08/465,072
8 USPQ 131, 133 (1931), which, in turn, quotes the Century
Dictionary). Other courts have applied similar definitions. See
American Disappearing Bed Co. v. Arnaelsteen , 182 F. 324, 325
(9th Cir. 1910), cert. denied, 220 U.S. 622 (1911). These
definitions require physical substance, which a signal does not
have. Accordingly, we conclude that a signal is not a product.
Appellant argues (Brief, pages 30-31) that claims reciting
"making a product" have already been issued in ancestor Patent
No. 5,584,032, that the claims in that patent have a presumption
of validity, and since the present disclosure is the same as the
disclosure in that patent, it must be accepted that there is
written description for the terminology in this application.
Likewise, appellant argues (Supplemental Appeal Brief, pages 17-
18, and Reply Brief, pages 61-65, 97-98, and 105) that the
examiner admitted in copending applications that "such product-
related terminology was obvious in view of the prior art without
the benefit of the instant disclosure" and, therefore, "cannot
now contend that such product-related claim limitations are
insufficiently disclosed" (Reply Brief, page 65).
That other patents have been issued with similar language
does not mean that that language is correct and does not control
the outcome of this case. See In re Riddle, 438 F.2d 618, 620,
169 USPQ 45, 47 (CCPA 1971) ("two wrongs cannot make a right").
The same applies to an examiner's actions in other cases.
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