Appeal No. 2006-3175
Application No. 10/419,601
well as being associated with empty and non-empty containers (col. 1, ll. 49-52).
For example, the color yellow can be used to identify the empty state and other
colors can be used to identify different types of gases contained in the container
(col. 2, ll. 5-7). The band is received on one of two circular grooves on the
container and can be flipped, when the container is empty, so that the yellow side
is exposed to thereby indicate that the container is empty (col. 2, ll. 13-18). The
appellant argues on page 5 of the brief that “[a]lthough Lyon does not disclose the
diameter of these gas cylinders, they clearly have a larger diameter than a baby
bottle” and the examiner does not dispute this argument. Instead, the examiner
urges that Lyon is capable of performing the function of snugly fitting on a baby
bottle by (1) doubling or tripling the band around a baby bottle or (2) attaching the
band around the long portion of the baby bottle or (3) placing the band around a
large diameter baby bottle (i.e. when used for large animals or people). Answer, p.
7.
While it is true that the claims in a patent application are to be given their
broadest reasonable interpretation consistent with the specification during
prosecution of a patent application (see, for example, In re Zletz, 893 F.2d 319,
321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989)), it is also well settled that terms in a
claim should be construed as those skilled in the art would construe them (see
Specialty Composites v. Cabot Corp., 845 F.2d 981, 986, 6 USPQ2d 1601, 1604
(Fed. Cir. 1988) and In re Johnson, 558 F.2d 1008, 1016, 194 USPQ 187, 194
(CCPA 1977)). Further, as pointed out by our reviewing court in Phillips v. AWH
Corp., 415 F.3d 1303, 1315, 75 USPQ2d 1321, 1327 (Fed. Cir. 2005), the claims,
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