Appeal No. 97-2555Application No. 08/215,062 Page 4
[t]he following are examples of lack of clarity
problems that occur through out these claims. It is left to
Applicant and their Counsel to identify and correct all
those not explicitly made example of below.
Claim 1 is indefinite because the term " the height "
and " is indefinite as to what plane of reference is
intended to be referred to determine the height.
The initial burden is on the examiner to identify the
specific portions of the claims which fail to particularly point
out and distinctly claim the subject matter which the appellants
regard as the invention. This the examiner has done only with
respect to independent claim 1. Accordingly, the examiner's
rejection of independent claim 4, and claims 5 to 16 and 19 to 23
dependent thereon, under 35 U.S.C. § 112, second paragraph, is
reversed since the examiner has not specified any indefiniteness
with respect to these claims.
We agree with the appellants (brief, p. 7) that the term
"the height" in claim 1 is definite. The second paragraph of
35 U.S.C. § 112 requires claims to set out and circumscribe a
particular area with a reasonable degree of precision and
particularity. In re Johnson, 558 F.2d 1008, 1015, 194 USPQ 187,
193 (CCPA 1977). In making this determination, the definiteness
of the language employed in the claims must be analyzed, not in a
vacuum, but always in light of the teachings of the prior art and
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