Appeal No. 2005-1574
Application 09/753,428
. . . [must] (1) perform the identical function and (2) be otherwise insubstantially different with
respect to structure. [Citations omitted.]” Kemco Sales, Inc. v. Control Papers Co., 208 F.3d
1352, 1364, 54 USPQ2d 1308, 1315-16 (Fed. Cir. 2000). “[T]wo structures may be ‘equivalent’
for purposes of section 112, paragraph 6 if they perform the identical function in substantially
the same way, with substantially the same result. [Citations omitted.]” Kemco Sales, 208 F.3d at
1364, 54 USPQ2d 1315. “[T]he ‘broadest reasonable interpretation’ that an examiner may give
means-plus-function language is that statutorily mandated in [35 U.S.C. § 112,] paragraph six,”
and in this respect, the examiner should not confuse “impermissibly imputing limitations from
the specification into a claim with properly referring to the specification to determine the
meaning of a particular word or phrase in a claim. [Citations omitted.]” Donaldson, 16 F.3d at
1195, 29 USPQ2d at 1850; see also Morris, 127 F.3d 1048, 1055-56, 44 USPQ2d 1023, 1028
(explaining Donaldson).
The corresponding “plastifying and extruding means” structure disclosed in the
specification is extruder die assembly 40 consisting of extruder 41, that can be a contra-rotating
twin screw extruder, and die head and die lip assembly 42, that can be a slot die, which forms an
extruded material (specification, e.g., page 27, l. 14, to page 29, l. 10, page 34, ll. 7-9, and Fig.
3).
We find that claim 21 specifies in the preambular language and in step “E.)” that the
synthetic wood-like product of the specified method has “an external foam skin and a foam core”
with “a surface embossed texture” and a specified Shore Hardness. There is no limitation which
specifies the extent to which the “skin” and the “core” must be “foam,” the nature and extent of
the “surface embossed texture” of the “foam skin,” or the manner in which the embossed texture
is produced other than the limitation of “slowly cooling [the] extruded product to create a
synthetic wood-like product having an external foam skin and a foam core, wherein said cooling
is performed in a roller system of a plurality of contra-rotating rollers.” Considering first the
“external foam skin,” a “foam skin” surface which is entirely foam bubbles at the specified
Shore Hardness would be “embossed” per se within the common dictionary meaning of the term
because of the raised surfaces of the bubbles above the plane of the surface of the product.
However, we determine that in context, the “surface embossed texture” of a simulated wood
product can be similar to that of a wood board in which a major portion of a relatively flat
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