Appeal 2007-0694
Reexamination Control 90/006,433
Patent 5,428,933
We find it odd that Patentee directs our attention to column 3, lines
20-24 and lines 26-27 of its specification but overlooks line 25. The
sentence starting at line 25 reads as follows:
The polymer may be foamed polymer, or more generally, such
webs are formed of non-foamed material.
(Philippe, ‘933 Specification, col. 3, ll. 25-27, emphasis added). We decline
to read Patentee’s preferred “non-foamed” web embodiment into Patentee’s
claims given the specification’s explicit statement that the webs may be
formed from foamed material.
Patentee also contends that:
The term “web” is therefore not only a different material but is
also a separate piece that joins the side panels when the web is
assembled.
(Appeal Br. at 42). Patentee’s specification states that the web “may” be an
adjustable web and does not require that the web be a separate piece.
(Philippe, ‘933 Specification, col. 3, ll. 31-33). As such, we do not read
Patentee’s claimed web as limited to a separate piece of material. We do not
credit Patentee’s alleged differences between Guarriello’s interior separator
formed of foamed polymer and Patentee’s broadly claimed “web,” which
also may be formed from foamed polymer.
viii. Patentee Contends that Guarriello Fails to Disclose
the Combination of (a) Projections and Recesses
that are “Continuous and Contiguous”, (b)
Rectangular Projections and Recesses and (c) Side
Panels with “Planar” Inner Surfaces
Independent claim 19, and claims 20-29 which depend upon claim 19,
38
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