Appeal No. 2005-1380
Application No. 09/944,314
the term ‘texture.’” Answer, page 4, paragraph (11). The
examiner construes “texture” to reasonably include smooth and
non-smooth textures (Answer, pages 4-5).
Appellants argue that texture is defined in their
specification as only including non-smooth finishes (Brief, page
4). Appellants further argue that neither Walter nor Bowser
concerns a “hearing instrument” (Brief, page 5). Appellants also
argue that Hoerkens lacks the procedural step of “imparting a
texture” since this reference adds a component separate from the
hearing aid to create a texture (id.). Appellants argue that the
examiner relies on an inapposite dictionary definition of
“texture” which is not consistent with the use of this term in
the specification (Brief, page 6). Finally, appellants argue
that Widmer only discloses ribs on the surface of the hearing
instrument shell and these do not constitute a “texture” or
create the appearance of “natural skin” (Brief, pages 6-7).
It is implicit in our review of the examiner’s anticipation
analyses that we must first correctly construe the claim to
define the meaning and scope of any contested limitations. See
Gechter v. Davidson, 116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032
(Fed. Cir. 1997). “The Patent and Trademark Office (‘PTO’)
determines the scope of claims in patent applications not solely
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