Appeal No. 2005-1115
Application 09/269,369
9 USPQ2d 1962, 1966 (Fed. Cir. 1989), In re Stencel, 828 F.2d
751, 754-55, 4 USPQ2d 1071, 1073 (Fed. Cir. 1987).
In light of the claim language and the disclosure with
respect to diffuser 110 of FIG. 7 which I discussed above, I am
of the opinion that one of ordinary skill in this art would find
no contrary definition of the term “a diffuser” in the disclosure
that “elongated body 114 [of diffuser 110] . . . extends the pair
of nozzles 112 into the mixing cylinder . . . in substantially a
perpendicular manner” such that the nozzles “remain fixed in a
stationary position within the cylinder . . . [and] do not rotate
about a central axis of the elongated body 114” (specification,
page 15, ll. 9-15). Indeed, there is no specific limitation in
the appealed claims which requires that the nozzles must be fixed
or adapted to be fixed in a mixing cylinder, even though the
appealed claims are open to encompass “a diffuser” coupled with a
mixing cylinder because of the open-ended transitional term
“comprising.” See generally, Vehicular Technologies Corp. v.
Titan Wheel Int’l Inc., 212 F.3d 1377, 1383, 54 USPQ2d 1841, 1845
(Fed. Cir. 2000); Genentech Inc. v. Chiron Corp., 112 F.3d 495,
501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997); In re Baxter, 656
F.2d 679, 686, 210 USPQ 795, 802 (CCPA 1981). Thus, the
“preferred embodiment” wherein “the diffuser 110 further includes
at least one support member 130 for additional structural support
within the mixing cylinder and to prevent torque created” by
nozzles 112 twisting elongated body 114 disclosed in the
specification (page 16) is encompassed in claims 1 and 7 only to
this extent.
Therefore, I cannot agree with appellant’s summary of
the claimed invention in the brief and thus his arguments in the
brief and the reply brief, subscribed to by the majority of this
panel, based on the premise that the claims require that “a
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