Appeal No. 03-2051 Page 5
Application No. 09/127,183
specification, begining at page 14, the appellant has set forth structure that
accomplishes these means-plus-function limitations. However, as has been pointed out
by the appellant, the examiner has not made findings and determinations in accordance
with the guidance provided by our reviewing court and as directed by Sections 2181-
2184 of the Manual of Patent Examining Procedure. In this regard, the examiner has
not established in posing the rejection that each means-plus-function limitation in each
of the rejected claims is met by the prior art, that is, that the system disclosed in the
McArthur patent performs the identical functions recited in the means-plus-function
limitations recited in claim 23 (Answer, pages 4 and 5). This fundamental shortcoming
causes the rejection not to be sustainable.
However, even if one were to consider, arguendo, that the three functions in the
claim are performed by the McArthur system, the rejection still would be fatally
defective, for the examiner has not determined whether these functions are performed
by structure that is the same as, or equivalent to, the structure disclosed by the
appellant in the specification. In this regard, we point out that such determinations are
not present in the statement of the rejection on pages 4 and 5 of the Answer, nor have
they been provided in the response to the appellant’s arguments on this subject on
pages 7-12 of the Brief. As to the question of whether the means is the same, the
examiner has not compared the structure disclosed by McArthur with that presented by
the appellant in the specification, and has not found that they are the same. Moreover,
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