Appeal No. 2006-1482
Application No. 10/619,890
non-enabling background comment that has nothing to do with the
rest of the patent's disclosure. Further, appellants discuss the
Tirmizi Declaration (brief, pages 7 and 8).
From our review of Adams, we find, for the reasons which
follow, that Adams anticipates the language of claim 1, as
advanced by the examiner. We begin with claim construction.
Analysis of whether a claim is patentable over the prior art
begins with a determination of the scope of the claim. The
properly interpreted claim must then be compared with the prior
art. Claim interpretation must begin with the language of the
claim itself. See Smithkline Diagnostics, Inc. v. Helena
Laboratories Corp., 859 F.2d 878, 882, 8 USPQ2d 1468, 1472 (Fed.
Cir. 1988). Accordingly, we will initially direct our attention
to appellants' claim 1 to derive an understanding of the scope
and content thereof.
We find that the claim language “for use in mining or
blasting” to be a statement of intended use. Review of the
entire claim reveals that the body of the claim does not rely
upon the language of the preamble for completeness. Rather, the
structural limitations are able to stand alone. Moreover, the
recitation of intended use does not result in a structural
difference between the claimed invention and the prior art.
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