Appeal No. 2006-1746
Application No. 10/375,679
advanced by Applicants, it can also be reasonably interpreted as advanced by the
Examiner, as amplified by our comments, infra. Because claims are to be
interpreted during patent prosecution as broadly as they can reasonably be
interpreted consistent with the specification, we select the examiner's interpretation
as the correct interpretation of the claim. In prosecution before the USPTO, there
is no reason why Applicants cannot amend the claims to clarify that the stimulator
is remote from both the hub and the needle assembly.
Turning to Fig. 1 of Chester, we find from fact 2 that the tip 17 of the needle
16 is remote from nerve stimulator 10 and that the indicator 28 is proximate to the
hub 12, 14, as advanced by the Examiner (Answer 10). Accordingly, based upon
our claim construction of claim 1, we find that the visual indicator 28 of Chester is
proximate to hub 12, 14 but is remote from the tip 17 of needle 16. Thus, we are
not convinced of any error on the part of the Examiner in rejecting claim 1, or
claims 2-8, 10-12, and 15-18, which depend therefrom, under 35 U.S.C. § 102(b)
as being anticipated by Chester.
We turn next to independent claim 20. We will sustain the rejection of claim
20 based on our interpretation, supra, of the term "remote" as found in claim 1. In
addition, we note that claim 20 requires that the visual indicator is rigidly
connected to the nerve block needle, which is met by indicator 28, 60 being rigidly
coupled via 12 and 14 to the needle as advanced by the Examiner (Answer 5).
Accordingly, we are not convinced of any error on the part of the Examiner in
rejecting claim 20, or claims 21, 23-25, and 28 which depend therefrom, under 35
U.S.C. § 102(b) as being anticipated by Chester.
We turn next to independent claim 29. This rejection has not been
separately argued by Applicants in either the Brief or the Reply Brief.
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