Appeal No. 2007-0517
Application No. 10/768,647
18) The Examiner does not rely upon Platt ‘761, Erceg ‘820, Minarelli ‘639 or
Boriani ‘592 as teaching or suggesting a particular fluid permeability. (Examiner’s
Answer, p. 4).
PRINCIPLES OF LAW
Claims are given their broadest reasonable construction during prosecution
before the USPTO because claims may be amended to the proper scope and
because it serves the public interest by reducing the possibility that the claims will
be construed more broadly after issuance than they were during examination. In re
Bigio, 381 F.3d 1320, 1324, 72 USPQ2d 1209, 1211 (Fed. Cir. 2004). In
construing claims, we begin with the presumption that claims mean what they say.
CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366, 62 USPQ2d 1658,
1662 (Fed. Cir. 2002)(There is a “heavy presumption” that claim terms carry their
accustomed meaning in the relevant community at the relevant time); Johnson
Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989, 50 USPQ2d 1607,
1610 (Fed. Cir. 1999) ( “[A] court must presume that the terms in the claim mean
what they say, and, unless otherwise compelled, give full effect to the ordinary and
accustomed meaning of claim terms.”).
Anticipation under 35 U.S.C. § 102 is a question of fact. Brown v. 3M, 265
F.3d 1349, 1351, 60 USPQ2d 1375, 1376 (Fed. Cir. 2001). A claim is anticipated
only if each and every element as set forth in the claim is found, either expressly or
inherently described in a single prior art reference. Verdegaal Bros. v. Union Oil
Co. of California, 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987).
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