Appeal No. 2006-1534
Application No. 09/829,007
regarding the number of settings in which questions occur is beyond that necessary to
perform the claimed function of questioning the user.
Finally, we note that construction under 35 U.S.C. § 112, sixth paragraph also
includes equivalents of the disclosed structure. As the disclosure acknowledges in
paragraph 51, saving data for later use is an art recognized equivalent to using data in
one setting. Accordingly, we find the appellants’ arguments regarding the limitation of
the questioning structure to one setting to be unpersuasive.
The appellants next argue that claim 1 “clearly states that the indicator score is
based on multiple answers.” [See Brief at p. 7] the appellants go on to argue that
Finkelstein describes compiling scores for individual symptoms, but not for combining
answers to multiple questions. [See Brief at p. 8]
The appellants appear to infer such a limitation of an indicator score based on
multiple answers from the limitation that the means is “for accumulating a score for at
least one indicator based on answers entered by the user to the questions.” We first
note that this phrase is subject to construction under 35 U.S.C. § 112, sixth paragraph,
because the phrase contains sufficient structure to render construction under 35 U.S.C.
§ 112, sixth paragraph inapplicable. In particular, the phrase limits to structure of the
phrase to including both an accumulator and a data element for a score. We next note
that the plural words “answers” and “questions” are not restricted to only those
corresponding to the particular indicator in the phrase, but may be construed to be all of
the questions asked during the questioning. That is, the claim phrase may be construed
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