Appeal 2007-2176
Application 10/309,852
not ordinarily construed to require a particular order unless the claim
explicitly requires a set order or if an order is implicit in the nature of the
steps.8
The meaning of "plug" is contested.9 The examiner has applied a
broad functional reading of the term. Furukawa urges that the reference
must be distinguished because the elements the examiner alternatively
identifies as the plug have a particular construction and other functions.
Neither the language of the claim nor the teachings of the specification bar
the plug from any additional structure or additional function. Thus, we
cannot read the term "plug" as narrowly as Furukawa argues we should.10 In
claim 17, the plug must block the downward motion of the core11 and must
be fusible. We decline the invitation to read additional limitations into the
term.
THE APPLIED PRIOR ART
Claims 17 and 20-24 have been rejected under 35 U.S.C. 102(e) as
anticipated by a patent to Berkey.12 In particular, the examiner points to the
8 Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1342,
59 USPQ2d 1401, 1416 (Fed. Cir. 2001).
9 Br. 5.
10 In re Morris, 127 F.3d 1048, 1056-57, 44 USPQ2d 1023, 1029-30 (Fed.
Cir. 1997) (noting the applicant's obligation to make the claim conform to
the scope the applicant says it has).
11 Note that even in Furukawa's disclosure, the plug does not accomplish its
function alone. Rather it is "supported" inside the tube by a pin, which
corresponds to the claimed fusible fixing member.
12 George E. Berkey, Method of making an optical fiber by placing different
core tablets into a cladding tube, US 6,434,975 (issued 20 August 2002)
(Berkey).
4
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