Appeal Number: 2006-1935
Application Number: 09/726,953
particularly given the use of the word “can” denoting capacity as contrasted with performance.
The examiner then argues that Kawasch’s system is capable of having the air directed to achieve
this result and that the direction of the flow in Kawasch’s system would still be from one side to
the other, irrespective of whether the flow impinged on the cornea. [See Answer p. 5-6]. The
examiner further argues that Kawasch teaches that the air flow dries the corneal gutter area rather
than the entire corneal area. [See Answer p. 6].
We note that Kawasch fig. 4 shows the air flow device in a position that would direct air
flow from one side of the cornea to the other. The device producing the air flow is to one side of
the patient, and is not aimed so directly at the patient that the flow across the patient would be
blocked. We further note that the claim makes no mention of whether the air flow impinges on
the cornea. We note that the Kawasch patent describes drying the corneal gutter area, which is
the perimeter of a flap that has been cut in the cornea, until the gutter area is substantially dry,
and this typically takes 15 to 30 seconds. [See Kawasch col. 5 lines 38 to 55]. From this we
note that the examiner’s argument is correct that Kawasch describes drying the corneal flap
rather than the entire cornea and we further note that the time constraint taught by Kawasch
implies that operating the air flow less than 15 seconds would not dehydrate even the corneal
flap, much less the entire cornea.
As the examiner noted, an apparatus claim is defined by its structure, not its method of use.
We note that, as the examiner argues, the device in Kawasch “can direct a flow of air above the
cornea of the patient from one side of the cornea to another side of the cornea, at a distance so
that the cornea is not dehydrated by the flow of air.” Therefore, we find the appellants’
arguments to be unpersuasive.
Accordingly, we sustain the examiner's rejection of claims 1 through 11 rejected under 35
U.S.C. § 103 as obvious over Kawesch in view of Glockler.
Claims 12 through 14 rejected under 35 U.S.C. § 102(e) as anticipated by Kawesch.
The appellants originally argued all claims together [See Brief p. 3], but separately argued
the method claims 12 through 14 in the reply brief [See Reply Brief p. 2]. The appellants argue
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