Appeal No. 2004-2072 Page 4
Application No. 10/036,678
at least one brace member that secures the wedge portion within the
socket portion, the brace member including an opening through at least one side
wall of the brace member and the wedge portion including an opening, the
openings being situated such that a tool can be received into the openings and
utilized to manipulate the wedge portion relative to the brace [member].
The anticipation rejections of claim 13
We will not sustain the rejections of claim 13 under 35 U.S.C. § 102(b).
The appellants argue (brief, pp. 10 and 13; reply brief, pp. 1-2) that the claimed
extruded socket portion and the claimed extruded wedge portion are not disclosed by
either Schmidt or Brendel.
The examiner asserts (answer, pp. 8-9 and 11-12) that the method of forming
the device is not germane to the issue of patentability of the device itself. Therefore,
the examiner gave the term "extruded" little, if any, patentable weight. Furthermore, the
examiner maintained that the term "extruded" does not distinguish over the structure of
the prior art. The examiner's position is that the term "extruded'' is merely a method of
forming and not a structural limitation.
In our view, the term "extruded" as used in claim 13 is a structural limitation
entitled to patentable weight since extruding imparts distinctive structural characteristics
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