Appeal No. 2003-0209
Application No. 394,390
More particularly, we consider that the examiner has failed
to properly interpret the "means for selectively controlling" of
appellants' claim 11 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 urged by
appellants in their brief (pages 3-4), that the "means for
selectively controlling the attitude of said vehicle" (answer,
page 2) pointed to by the examiner in Anderson are not the same
(structurally or functionally) as those described in appellants'
specification, and it is also clear that the examiner has not
attempted to articulate any reasoning as to why the structure of
the applied Anderson patent should be considered to be an
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