Appeal No. 2004-0906
Application No. 09/571,896
is not persuasive. Implicit in any analysis of a rejection under
section 102(b) is that the claim must first have been correctly
construed to define the scope and meaning of any contested
limitation. See Gechter v. Davidson, 116 F.3d 1454, 1457, 43
USPQ2d 1030, 1032 (Fed. Cir. 1997). As discussed above, we have
construed claim 1 on appeal as requiring that the “pair” of guide
rails “is substantially parallel planar” to a single wall but that
there is no explicit or implicit requirement in claim 1 on appeal
that the wall also substantially defines a plane.
Additionally, we note that the point at which the beam 4
crosses the silo wall may be considered as a plane tangential
to the silo wall (see the Answer, page 3, and page 5, first
paragraph). Accordingly, even assuming arguendo that appellants’
claim construction is correct, we determine that the wall of the
silo in Bumgarner defines a plane that is parallel planar to the
plane defining the pair of guide rails.
With regard ro the rejection of claim 7 on appeal, appellants
argue that Bumgarner fails to disclose or suggest that the pair of
guide rails is supported by and substantially parallel planar to
one wall, and the counterweight guide rail is supported by and
adjacent to the wall (Brief, page 9). This argument is not
persuasive for reasons discussed above with respect to the wall,
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