Appeal 2007-0694
Reexamination Control 90/006,433
Patent 5,428,933
claim term. Id. at 1323, 75 USPQ2d at 1334.
Mr. Philippe has extensive experience in the concrete construction
industry and declares that his testimony is taken from the vantage point of a
person of ordinary skill in the art. Further, Mr. Philippe’s “minor variation”
definition is reasonable on its face and is not inconsistent with Webster’s
definition. Based upon the evidence presented, we credit Mr. Philippe’s
testimony and conclude that the broadest reasonable interpretation for the
claim term “substantially” is minor variations, such as those implicit in
manufacturing processes. Additionally, we credit Mr. Philippe’s testimony
that “substantially the same dimensions” for foamed material forms would
be understood by a person of ordinary skill in the art to be about 1 to 2%
variation in dimension.
Patentee also argues that the term “substantially the same dimensions”
does not encompass “intentional” differences in dimensions. (Appeal Br. at
18). Patentee fails to provide a legal basis for such a subjective approach to
claim interpretation. Specifically, Patentee fails to direct our attention to a
legal basis for alleging that a prior art article that is identical in every way to
a claimed invention fails to anticipate the claimed invention unless the prior
art article was intentionally designed to be the same as that claimed. The
point is moot however, as the use of projections and recesses having the
same dimensions was known in the concrete block form art. (See, e.g.,
Horobin ‘969, Fig. 1, Parts 38 and 40).
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