Appeal 2006-2166
Application 10/727,442
may have the appearance of small branches and may form leaves” (emphasis
added) (Specification 2).
Comparing our construction of the claim term “log” above and
Appellant’s definition of “shoot,” it is impossible on this record to discern
the difference between a branch which is a “shoot” and a branch which is a
“log.” Stated differently, Appellant’s Specification makes it impossible to
determine when a “shoot” is or is not a “log” so as to be encompassed or not
encompassed by Appellant’s claims. Appellant’s definition of “shoot”
indicates that a “shoot” may have the appearance of “small branches”
(Specification 2). Appellant has neither provided a diameter range for the
term “shoot” nor described what constitutes “small branches” as used in
Appellant’s “shoot” definition. Similarly, a “log”, as construed, includes a
portion of a tree branch “typically” having a diameter of one to two inches,
but may have diameters less than one inch. Therefore, the record before us
supports a determination that there is overlap between the term “shoot” and
the claim term “log” as described by Appellant.
Cuenca discloses that shoot cultures of beech trees were used to
obtain “internodal segments” for “[a]dventitious bud induction” (Cuenca
214, col. 2). The “internodal segments” were obtained from “6-week-old
shoot cultures” obtained from shoot cultures of two-month old seedlings and
a four-year old plant (Cuenca 214, col. 2). The “internodal segments” were
treated with a cytokinin to develop shoot buds (Cuenca 216, col. 2), which
developed into shoots that were later cut from the internodal segments and
rooted (Cuenca, 218, col. 2 to 219, col. 1).
Applying our construction of the claim term “log” to Cuenca’s
method of using cytokinins to produce shoots, we determine that Cuenca’s
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