Appeal No. 2004-1228
Application No. 09/813,088
examiner’s determination (answer, page 6) that the claim
limitations are product-by-process limitations that have not been
shown to distinguish over the prior art. When a product recited
in a product-by-process claim reasonably appears to be the same
as or obvious from a product of the prior art, the burden is on
the applicant to show that the prior art product is in fact
different from the claimed product, even though the products may
be made by different processes. In re Thorpe, 777 F.2d 695, 697,
227 USPQ 964, 966 (Fed. Cir. 1985).
With respect to appealed claim 40, the appellant contends
that Rodgors does not disclose a “cuff” as recited in the claim.
(Substitute appeal brief, page 15.) We agree with the examiner’s
determination (answer, pages 6-7) that the appellant’s contention
regarding a cuff is also without merit. It is well settled that,
in proceedings before the United States Patent and Trademark
Office (PTO), claims in an application are to be given their
broadest reasonable interpretation, taking into account the
written description found in the specification. In re Morris,
127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re
Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir.
1989)(“During patent examination the pending claims must be
interpreted as broadly as their terms reasonably allow.”); In re
Yamamoto, 740 F.2d 1569, 1571, 222 USPQ 934, 936 (Fed. Cir.
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