Appeal No. 2007-0692
Application No. 10/729,973
skilled worker would have recognized the two-tiered top surface structure of
Panduit’s cable mount as a “tongue-engaging plate” which is capable of
performing these functions. The Examiner asserts that “the top surfaces of
the plates are fully capable of engaging a tongue.” (Answer 5.) However,
the dispositive issue is not whether the cable mount is capable of contacting
(“engaging”) the tongue, but whether it can confine and hold it on its top
surface. The Examiner provides no evidence to support the position that the
cable mount’s two-tiered top surface would be recognized as capable as
capable of performing this function by persons of ordinary skill in the field
of the invention.
In reaching this determination, we have interpreted the “tongue-
engaging plate” to be more than a statement of purpose or intended use of
the claimed device, but also to require that the plate be capable of confining
holding the tongue in order to control it during an intubation procedure. In
other words, we interpret structure from it. The specification describes this
structure generally as an “elongated” plate having preferred spoon or
concave shapes (Specification 4: 14-17) to hold the tongue in place. The
skilled worker would not have reasonably interpreted the tongue-engaging
plate so broadly that it could cover the two-tiered cable mount surface
described by Panduit. Yes, Panduit’s mount could be adhesively attached to
a laryngoscope blade, inserted into the mouth, and placed in contact with the
tongue. But, we agree with Appellant that there is nothing about its upper
surfaces that would reasonably suggest it could be used to hold the tongue,
rather than damaging and deflecting it from the mount surface (Br. 10). The
purpose of giving claims their broadest reasonable interpretation is to reduce
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