Appeal No. 2002-2155
Application No. 09/003,276
"means for selecting a confidential mode" in accordance with
35 U.S.C. § 112, sixth paragraph. As was made clear in In re
Donaldson Co. Inc., 16 F.3d 1189, 1193, 29 USPQ2d 1845, 1848
(Fed. Cir. 1994), the sixth paragraph of 35 U.S.C. § 112 permits
an applicant to express an element in a claim for a combination
as a means or step for performing a specified function without
the recital of structure, materials or acts in support thereof,
and mandates that such a claim limitation
shall be construed to cover the corresponding
structure, materials, or acts described in the
specification or equivalents thereof.
In this case, it is clear to us, as has been argued by
appellants in their brief (pages 4-8) and reply brief, that the
purported "means for selecting a confidential mode" pointed to by
the examiner in Kanou are not the same (structurally or
functionally) as those described in appellants' specification,
and also clear that the examiner has not meaningfully attempted
to articulate any reasoning as to why the structure of the
applied Kanou patent should be considered to be an equivalent of
the means which is set forth in appellants' specification and
claims.
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