Appeal No. 1996-2901
Application No. 08/072,879
‘supplied’ indicates that means are employed to actively
supply the moisture.” (Answer, page 3).
Appellants note that claim 1 does not contain the word
“supplied.” (Brief, page 4). Appellants submit that the word
“supplying” is recited in the last clause of claim 1 but that
this word does not necessarily imply that there must be a
means employed to actively supply the moisture (Brief, pages
4-5).
“The legal standard for definiteness is whether a claim
reasonably apprises those of skill in the art of its scope.”
In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ2d 1754, 1759
(Fed. Cir. 1994). The initial burden of presenting a prima
facie case of unpatentability, on review of the art or on any
other ground, rests with the examiner. In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
On the record before us, the examiner has failed to meet
this initial burden. The examiner has not presented any
convincing evidence or reasoning as to why “supplied [sic,
supplying]” indicates that means are employed to “actively
supply” the moisture or why one of ordinary skill in the art
would not have been apprised as to the scope of “supplying.”
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