Appeal No. 2004-1337
Application No. 09/783,923
Appellants argue that the substance of pending claims 154-165 do not claim the
same limitations and claims 86-95 lack identity with claims 154-165. (See brief at pages
4-9.) The examiner maintains that claims 86-95 of the prior (parent) patent could be
infringed by pending claims 154-165. The examiner maintains that a correlation of
claim 86 of the patent to claim 162 as shown in the answer is exemplary of the literal
infringement. We disagree with the examiner. The examiner maintains that those
portions of claim 86 which do not have corresponding limitations in claim 162 would
have been inherent in the structure of the plurality of switch nodes. (See answer at
pages 4-5.) We disagree with the examiner and do not find that the examiner has
shown how these limitations would have been inherently present. Additionally we note
that there is a glaring difference between the present application claims and the claims
of the patent in the examiner’s table. Specifically, the limitations of the patent are
drafted in means plus function format where the specific structure, acts and materials
disclosed in the specification would be read into the claim limitations, whereas, the
present claims may be interpreted as being broader than the limitations of the patent
claims. Here, we find that the present claims set forth the switch nodes and nominally
recite the interconnection, whereas the claims of the patent set forth the specifics of
what interconnects the plurality of switch nodes. Therefore, we disagree with the
examiner that the present claims are directed to the same invention, and we will not
sustain the double patenting rejection.
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