Appeal No. 2005-2643
Reexamination Control No. 90/005,842
D. The grouping of the claims
At page 5 of the brief, appellant states that “[f]or purposes of this Appeal, all of
the claims shall be considered separately and do not stand or fall together.” Under 37
CFR § 1.192(c)(7) (2001), which was in effect when the brief was filed, a group
of claims rejected on the same ground can be treated as standing or falling together
unless the brief states that the claims of the group do not stand or fall together and
explains why the claims are believed to be separately patentable. As noted below,
some of the rejected claims have not been separately argued and thus will be treated as
standing or falling with their parent claims.
E. The scope and meaning of the claims
“[D]uring examination proceedings, claims are given their broadest reasonable
interpretation consistent with the specification.” In re Hyatt, 211 F.3d 1367, 1372, 54
USPQ2d 1664, 1667 (Fed. Cir. 2000) (citing In re Graves, 69 F.3d 1147, 1152, 36
USPQ2d 1697, 1701 (Fed. Cir. 1995); In re Etter, 756 F.2d 852, 858, 225 USPQ 1, 5
(Fed. Cir. 1985) (en banc)).
Thus, as explained in In re American Academy of Science Tech Center, 367 F.3d 1359,
1369, 70 USPQ2d 1827, 1834 (Fed. Cir. 2004), which was an appeal from a Board
decision in a reexamination proceeding,
the Board is required to use a different standard for construing claims than
that used by district courts. We have held that it is error for the Board to
“appl[y] the mode of claim interpretation that is used by courts in litigation,
when interpreting the claims of issued patents in connection with
determinations of infringement and validity.” In re Zletz, 893 F.2d 319,
321 [13 USPQ2d 1320, 1321] (Fed. Cir. 1989); accord In re Morris, 127
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