Appeal 2007-2318
Application 10/947,324
appears to be capable of contacting the jig body, and no more is required by
the claim language.
Appellant also argues that the Examiner has applied an unreasonable
definition to the claim limitation stating that “a major portion of said blade
[is] above the upper surface of said jig during retrieval” (Reply Br. 10-11).
The Examiner maintains that this limitation is met because the entire blade
will be above the lure during the part of the retrieval “when the lure is out of
the water and suspended in the air by the fishing line” (Answer 8).
Appellant provided a Rule 132 declaration by Michael T. Shelton,
who described himself as a professional fisherman and declared that “the
skilled fisherman understands ‘retrieval’ as being the act of drawing a lure
under the surface of the water or through the water,” and would not
“consider the act of lifting the lure out of the water as part of the ‘retrieval’
of the lure” (Shelton Declaration, ¶¶ 8 and 9). The Examiner provided no
evidence to show that those skilled in the art recognize a broader definition
of “retrieval” (see Answer 21).
“Although the PTO must give claims their broadest reasonable
interpretation, this interpretation must be consistent with the one that those
skilled in the art would reach.” In re Cortright, 165 F.3d 1353, 1358, 49
USPQ2d 1464, 1467 (Fed. Cir. 1999). Here, the evidence of record shows
that those skilled in the art did not consider the act of lifting a lure out of the
water to be part of the “retrieval” of the lure, and the Examiner has not
provided any alternative explanation of how Yarvise describes a lure in
which a major portion of the blade is above the upper surface of the jig
8
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