Appeal 2007-0694
Reexamination Control 90/006,433
Patent 5,428,933
alternating projections and recesses.” (Appeal Br., Table of Contents, p. 2,
VII(1)). In particular, Patentee contends that one of ordinary skill in the art
would have understood that “substantially the same dimension” means
essentially the same length but with allowances for minor variations that
typically arise due to variability in the manufacturing process. (Id. at 14 and
17). Patentee also states that the prior art shows a discrete pair of
projections in contrast to the claimed “two rows of alternating projections
and recesses.” (Id. at 32).
The Examiner found that substantially the same dimension means
“being largely but not wholly that which is specified.” (Ans. at 10). The
Examiner states that, as to the claimed dimensions, “[t]he claimed language
is simply lack of any degree of precision.” (Id. at 11). The Examiner further
states that Patentee has not defined any range for “minor variations” and that
the claims do not provide any “dimension to the size of the structures.” (Id.
at 10 and 12). The Examiner concluded that Guarriello describes concrete
forms having projections and recesses of substantially the same dimension.
The Examiner also found that Guarriello describes at least two rows of
alternating projections and recesses. (Id. at 13).
We affirm-in-part the Examiner’s rejections and enter a new grounds
of rejection.
ISSUE
The issue is whether Patentee has shown that the Examiner erred in
rejecting the claims. Specifically, the issue is:
Has Patentee demonstrated that the Examiner was incorrect in
finding that one of ordinary skill in the art would have
understood Guarriello to describe projections and recesses of
“substantially the same dimension”?
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