Appeal No. 2004-2176
Application No. 09/996,624
position compresses the film against the chute. Appellants argue
that there is no statement in Fukuda that the air cylinder 78 functions
to control the compressive force between the belt 55 and the film
“S.”
Beginning on page 4 of the answer, the examiner rebuts and states
that air cylinder 78 of Fukuda effectively moves the vertical sealing
belt 55 in order to seal the web by direct contact, and the examiner
then concludes that the compressive force is thereby controlled by
air cylinder 78. We agree. We note that during patent examination,
the pending claims must be interpreted as broadly as their terms
reasonably allow. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 320,
322 (Fed. Cir. 1999). In determining the patentability of claims,
the PTO gives claim language its “broadest reasonable interpretation”
consistent with the specification and claims. In re Morris, 127
F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997)(citations
omitted). In the instant case, claim 1 recites, inter alia, “an
air cylinder for controlling compressive force with which said heater
unit at said sealing position compresses such film against said chute
by having air of a specified pressure supplied thereto.” Applying
any desired amount of force (which air cylinder 78 of Fukuda provides)
satisfies the meaning of “controlling compressive force.” Fukuda’s
air cylinder 78 provides such function.
In any event, and more importantly, as pointed out by the
examiner on page 5 of the answer, apparatus claims must be
distinguished from the prior art in terms of structure, rather than
function. See In re Schreiber, 128 F.3d 1473, 1474-77, 44 USPQ2d
1429, 1431-32 (Fed. Cir. 1997). On this record, however, there is
no evidence that the claimed air cylinder is structurally different
from that described in Fukuda. In the absence of such evidence (which
appellants have not provided in the record before us), we affirm
the rejection.
Accordingly, the 35 U.S.C. § 102(b) rejection of claims 1, 4
-3-
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