Appeal 2007-3154
Application 10/262,817
member, and 20 as an electrically actuated diaphragm 20 (comprised of
multiple ionic polymer metal composites). If 17 and 17’ are regarded as the
tubular members, and 20 as the electroactive polymer actuator, the tubular
member does not comprise the electroactive polymer actuator as they are in
different sections of the pump apparatus of Soltanpour, and thus the pump
apparatus does not meet the limitations of claim 1.
The Examiner also appears to be construing 14 of Figure 1a (the
pumping chamber) as the tubular member (Answer 8). Appellants respond
that the pump chamber is not tubular, but is disclosed as being generally
rectangular (Br. 6), and that a “tube” is a hollow cylinder, and thus of
necessity is curved, and the Examiner’s assertion that a tube may comprise a
rectangular shape is contrary to the ordinary usage of tubular (id. at 7).
The Examiner responds, citing Merriam-Webster’s Collegiate
Dictionary, 10th Ed., 2001, that a tube may be defined as “any of various
usually cylindrical structures,” and that the use of “usually” in the definition
“demonstrates that a tube is not required to have a circular cross-section.”
(Answer 7-8.)3
We find that Appellants have the better argument. “Tubular” may be
defined as “consisting of tubes or a tube.”4 “Tube” is defined as “a hollow
3 The Examiner also cites US Patent 6,045,565 to Ellis as disclosing that a
tube may have round, triangular, or square cross-sections. We do not find
the Examiner’s citation to Ellis as relevant to the definition of tube in the
instant case, as a patentee may be his or her own lexicographer.
4 tubular. Dictionary.com. The American HeritageŽ Dictionary of the
English Language, Fourth Edition. Houghton Mifflin Company, 2004.
http://dictionary.reference.com/browse/tubular (accessed: August 19, 2007).
4
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