Appeal No. 2002-2050
Application No. 08/973,019
include voltages specifically precluded by the testimony of Mr.
Fenton and Mr. Hirt. Appellant's claim 1 recites "high voltage,"
which, in the absence of specific voltages in the claims, is
interpreted in light of the specification. The disclosure
indicates that "high voltage" refers to any voltage above 10 kV,
which includes the voltages of Shildneck. Therefore, testimony
of unexpected results at voltages of 136 kV or 177 kV, for
example, as stated by Mr. Hirt on page 7 of the June 26, 2001
declaration, does not show unexpected results for all voltages
covered by the claims and is thus not commensurate in scope with
the claims. Accordingly, there is no nexus between the evidence
of commercial success and unexpected results and the claimed
invention. Further, the evidence does not speak to the
obviousness vel non of combining Shildneck and Elton '565, which
relate to the lower voltages covered by the claims.
In closing, we sufficiently modified our original decision
(November 27, 2002) in this Appeal, as noted at pages 2 and 17 of
our last opinion (April 16, 2003), that we designated that last
opinion as a new decision. That designation afforded appellant
the administrative due process right to seek its rehearing.
Since this has been done, and since we have herein rendered a
decision on appellant's request for rehearing, appellant's
administrative due process interests have been preserved.
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