Appeal 2007-1325
Application 10/065,722
1 within the scope of rejected claims 83 and 88-89 and claims dependent
2 thereon.
3 However, it is probably the case that Dart intends to cover a
4 "chamber" of the type described in ¶¶ 1053 and 1054 as being a "gap." The
5 gap is created by intentionally designing the depth of the mounting element
6 to be shorter than the depth of the recess so that a "gap" is created for the
7 purpose of creating a reservoir to keep the top of the lid dry. In our view,
8 the features of the "gap" are not necessarily translated into claim 84 through
9 the use of "chamber."
10 If this were an infringement case, we might be inclined to construe
11 "chamber" as being the "gap" described in ¶¶ 1053 and 1054. However, this
12 is not an infringement case. The application is pending before the Patent
13 Office and time to avoid any possible problem in the event claim 84 is
14 issued in a patent is while the application is pending. To put off a claim
15 interpretation issue on to the public and a district court is not an efficient
16 implementation of the patent system. See e.g., Graham, 383 U.S. 18 (to
17 await litigation is—for all practical purposes—to debilitate the patent
18 system). We are confident that Dart can probably amend claim 84 in such a
19 manner as to (1) more clearly set out what Dart regards as its "chamber"
20 invention, (2) overcome our concerns and (3) would meet with the approval
21 of the Examiner. We note that the Examiner has not rejected claim 84 over
22 the prior art. We likewise know of no basis for rejecting the claim over the
23 prior art, provided it is further limited consistent with the views set out
24 above.
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