Appeal 2007-3762
Application 10/422,282
purpose of patent examination is to fashion claims that are
precise, clear, correct, and unambiguous. Only in this way can
uncertainties of claim scope be removed, as much as possible,
during the administrative process.’).
In re American Academy of Science Tech Center, 367 F.3d 1359, 1364, 70
USPQ2d 1827, 1830 (Fed. Cir. 2004).
To articulate is to “join to allow movement: to form the kind of joint
or connection that allows movement” (http://encarta.msn.com/encnet/
features/dictionary/DictionaryResults.aspx?refid=1861586978). Therefore
the device of Appellant’s claim 1 is configured so that the device and
vertebrae are connected in a manner that allows movement. There is no
dispute on this record that Büttner-Janz’s device is configured in a manner
that allows movement. The question is whether Büttner-Janz’s device
moves with respect, reference, or in relation3 to at least one vertebral
endplate.
As discussed above, and illustrated in Büttner-Janz’s Figure 1,
Büttner-Janz’s device is inserted between two vertebrae and is connected to
the endplates of the vertebrae. Therefore, we agree with Appellant that
Büttner-Janz’s device comprises two components (elements 1 and 24) which
articulate with respect to each other (Br. 4). Accordingly, with reference to
Büttner-Janz’s Figure 1, as the lower vertebrae moves - element 2 articulates
with respect to the upper vertebrae’s base plate to which element 1 is
3 Merriam-Webster’s defines the phrase “with respect to” as “with reference
to” or “in relation to” (http://www.m-w.com/cgi-bin/dictionary?book=
Dictionary&va=with+respect+to).
4 The two components to which Appellant refers are those which “are fused
to the endplates using spikes for attachment purposes” (Br. 4) - specifically
elements 1 and 2.
6
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