Appeal No. 1996-1876
Application No. 08/344,663
of 100 nm. However, this prior art device arguably would not
infringe the appealed claims if the device were used in
conjunction with a reading laser having a wavelength of 750 nm
as preferred by Oba. See Oba at column 12, lines 11-17 and
the brief at page 6. However, if the above device happened to
be read by a laser having a wavelength of 450 nm or less, the
prior art recording medium would be covered by the appealed
claims. See the answer at page 5. Accordingly, whether this
recording medium is covered by the appealed claims would be
determined not on the basis of the structural elements and
their interrelationships, but perhaps by an instruction sheet
contained in the packaging of the recording medium directing
one to use the recording medium with a specified laser. This
gives rise to an uncertainty in the interpretation of the
claims, which we believe to be exactly what the requirements
of 35 U.S.C. § 112, second paragraph, seek to avoid. Thus, we
sustain the rejection of the appealed claims under this
section of the statute.
We also alternatively sustain the examiner’s prior art
rejections (35 U.S.C. § 102(b) and 35 U.S.C. § 103) of
appealed claims 1-4 based on Oba. In this regard, if the
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