Appeal 2007-0683
Application 10/121,772
would consider such flexure arm assemblies to be “substantially identical”
when compared to Appellants’ disclosed arrangement. Further, whether or
not Nakanishi intended each of the flexure and actuator arm assemblies to be
different, as contended by Appellants, is of no moment in determining
whether the Examiner erred in establishing a case of anticipation since the
claimed terminology simply does not require strict identity of structure.
We further find to be unpersuasive Appellants’ contention (Reply Br.
8) that the Examiner has unreasonably established himself as the “sole
arbiter of what substantially identical means. In our view, it is Appellants
who, after submitting claims to structures which are not limited to features
that are strictly identical, unreasonably contend that they also have the right
to decide which features are or are not to be considered in determining
whether structures are identical.
We also find to be without merit Appellants’ argument (Br. 11, Reply
Br. 8) that the Examiner has improperly construed the language of claim 12
which is set forth in means-plus-function format. We find no error in the
Examiner’s showing (Answer 8) that the different width mounting portion
structure, illustrated in Figures 12A and 12B of Nakanishi, performs the
function specified in the claim, is not excluded by any definition in
Appellants’ Specification for an equivalent, and performs the identical
function (attenuating a resonance response) in the same way and produces
the same results.
We also make the observation from our own independent review of
Nakanishi that, even in the strict interpretation of “substantially identical”
urged by Appellants, the disclosure of Nakanishi meets all of the
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