Appeal No. 2006-0790
Reexamination Control No. 90/005,117
Paulsen, 30 F.3d 1475, 1479, 31 USPQ2d 1671, 1674 (Fed. Cir.
1994).
Appealed claim 1 recites in part (last clause): “a gas
spring connected between the tread base and the upright
5 structure to assist in stably retaining said tread base in said
second position relative to said upright structure with said
tread base in said second position.” (FF2.) The examiner did
not hold that this clause invoked 35 U.S.C. § 112, ¶6. (FF3.)
The appellant never challenged the examiner’s interpretation of
10 this clause (or any other clause in the appealed claims) in this
regard. (FF4.) In fact, at oral argument held on April 6,
2006, the appellant’s counsel was questioned whether the last
clause in appealed claim 1 invoked 35 U.S.C. § 112, ¶6. (FF5.)
In response, the appellant’s counsel confirmed that it did not.
15 (FF6.) Thus, it is appropriate, as the examiner has done so
here, to give the language of this clause its broadest
reasonable interpretation consistent with the accompanying
specification. In re American Academy of Science Tech Center,
367 F.3d 1359, 1364, 70 USPQ2d 1827, 1830 (Fed. Cir. 2004)(“The
20 ‘broadest reasonable construction’ rule applies to
reexaminations as well as initial examinations.”).
17
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