Appeal No. 2003-1640
Application 09/634,692
description in the specification simply and plainly requires that the toe control must pivot at the
foot brace in order to affect the steering assembly and direct the watercraft. The specification
does not define the term “pivot” or “pivotally,” and we find no basis in the claim language or in
the written description in the specification to read any structural limitation(s) from the
specification into the claims in this respect. See Zletz, supra. Thus, we give the term “pivot” its
common, dictionary meaning in context: “1. A short rod or shaft around which a related part
rotates or swings. . . . 3. The act of turning on or as if on a pivot.” The American Heritage
Dictionary, Second College Edition 946 (1982). Accordingly, the toe control is linked to the foot
brace in a manner which permits the toe control to be pivoted by the foot. See, e.g., Morris,
supra; Zletz, supra.
The examiner posits, on the apparent basis of the figure in the 1988 Derwent
Publications, Ltd. abstract of Carré,3 that this document shows that “[t]he first toe control is 25. It
pivots about axis 23” such that “the first toe control pivotally linked through 23 to the foot brace
is 25,” wherein “the first foot brace is 8” (answer, page 6), and that “toe control 25 pivots about
the axis defined by axle 23 because of the play in the cable section between pulleys 32 and 33”
such that “rod 26 . . . [would pivot] in an upward direction: due to vibration forces in the cable
section between pullets 32 and 33; and due to upwardly directed forces which result when a foot
slides blade 25 from side to side” (id., page 9). Appellant submits that the figure in the Derwent
abstract “appears to clearly show toe control 25 as translating laterally (as indicated by the arrows
3 The examiner specifically cited the published French Patent Application to Carré in the ground
of rejection and thus the explanation of the ground of rejection based on the Derwent abstract
document is entirely improper. Indeed, appellant states that the examiner supplied only the
Derwent abstract of the reference and that he responds based on this document (brief, page 8 n.4;
reply brief, page 3), and based on the date the translation of the French application was obtained,
the Derwent abstract document was in fact relied on by the examiner in the final rejection of May
15, 2002 (Paper No. 12). Ordinarily, this is reversible error because the published application and
the abstract are in fact different and independent documents from different entities, each
document having its own distinct disclosure and effective date, and thus the ground of rejection
must stand or fall on the cited document. However, in this instance, the review of the examiner’s
basis for rejection can be appropriately based on consideration of the Derwent abstract alone,
which has an applicable publication date. We attached to our decision a copy of the translation
prepared at the request of the examiner for the USPTO by FLS, Inc. (February 2003), which we
find in the file.
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