Appeal 2007-1101
Application 10/248,535
not recited in the independent claims before us. Moreover, when questioned
at oral hearing what the meaning is of the term “fluctuations” as disclosed,
Appellant’s representative indicated that the Specification does not define
this term. Likewise, there is no claimed rapid movement of the oscillator
and it appears to not be disclosed in this manner.
On the other hand, the actual recitations of the argued oscillator, the
feature primarily argued by Appellant in the Brief and Reply Brief as recited
in each independent claim 1, 12, and 30, is not coextensive with the
disclosed invention. Claim 1 recites “an oscillator operatively connected to
the piston for fluctuating the fluid in the cavity.” Claim 12 recites
“selectively activating an oscillator to fluctuate the fluid in the cavity” where
the oscillator is merely passively recited. Lastly, in independent 30 there is
recited “an oscillator axially movable in the cavity for fluctuating the fluid in
the cavity.” Thus, none of the independent claims on appeal require the
oscillator to be within the probe or otherwise within the piston as disclosed.
In claim 1, the oscillator is merely operatively connected to the
piston. There is no positive recitation of an oscillator in the method in
independent claim 12 in contrast to the positive recitation of the probe and
the piston within it in this claim. As to independent claim 30, the oscillator
is merely stated to be selectively positionable within the cavity. In each of
these independent claims, the function of fluctuating the fluid in the cavity is
recited.
Although the Examiner’s position is of the view that Ciglenec does
not teach the oscillator or the like, it appears to us from our studied review
of this reference that the respective teachings and showings of the respective
elements within the probe 16 in Figures 2 and 3 of the first embodiment,
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