Appeal 2007-2640
Application 09/933,517
to achieve the claimed invention. Thus, the Examiner has properly shifted
the burden to Appellant to provide rebuttal evidence or arguments.
Appellant argues that “the ‘swimming pool’ of Meilahn is really a
tank ‘for growing aquatic animals’ (see column 1, lines 5-6)” and that the
Examiner’s broad interpretation of the recited “swimming pool” limitation is
unreasonable” (Reply Br. 8-9).
We find that the Examiner has the better argument. During
prosecution, claim terms are given their broadest reasonable interpretation as
they would be understood by persons of ordinary skill in the art in the
context of the specification. The Specification does not provide a specific
definition of a “swimming pool structure,” but it states that “any shape, for
example cylindrical or cubical, can be adopted as far as it floats on the sea”
(Spec. 9: 20-25). In view of this disclosure, it is our opinion that the
Examiner reasonably interpreted “swimming pool structure” broadly to
cover Meilahn’s cylindrical rigid walled tank having preferred dimensions of
18 meters wide and 8.5 meters high (Meilahn, at Abstract, col. 2, ll. 1-2, and
col. 3, ll. 37-39). Appellant has not identified any structure in Meilahn’s
tank that would make it unsuitable for swimming.
Appellant contends that the claimed swimming pool substantially
excludes aquatic animals (Reply Br. 10-11), but does not explain how this
exclusion is represented in claims 8 or 44 by a structural feature that would
distinguish the claimed swimming pool structure from Meilahn’s tank.
Thus, we do not find this argument persuasive.
In setting forth the case of prima facie obviousness, the Examiner
relied on three different references – Iseki, Nomura, and Miyamoto – for
providing the motivation to have utilized deep sea water in Meilahn’s tank.
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