Appeal No. 2001-0840
Application No. 08/896,882
involves cross-linking which produces a non-thermoplastic material2. Id. We find no evidence to
the contrary proffered by the examiner. Accordingly, we reverse this rejection.
We turn next to the examiner’s rejection of claims 1 through 24 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly point out and distinctly claim the
subject matter which regards as his invention. The purpose of the second paragraph of Section 112
is to basically insure, with a reasonable degree of particularity, an adequate notification of the
metes and bounds of what is being claimed. See In re Hammack, 427 F.2d 1378, 1382, 166 USPQ
204, 208 (CCPA 1970). As the court stated in In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236,
238 (CCPA 1971), the determination of whether the claims of an application satisfy the
requirements of the second paragraph of Section 112 is
merely to determine whether the claims do, in fact, set out and circumscribe a
particular area with a reasonable degree of precision and particularity. It is here
where the definiteness of language employed must be analyzed -- not in a vacuum,
but always in light of the teachings of the prior art and of the particular application
disclosure as it would be interpreted by one possessing the ordinary level of skill in
the pertinent art. [Emphasis ours; footnote omitted.]
Here, the examiner criticizes the use of the terminology “that is not a thermoplastic” since it is said
to be inconsistent with the claimed elongation property, i.e., “elongation of 325-425%”. The
examiner, however, does not indicate that the scope of the claim language cannot be ascertained.
2 While thermoplastic is defined as “a linear polymer which may be softened by heat and
cooled in a reversible physical process,” thermoset plastic (non-thermoplastic) is defined as “a
network polymer usually obtained by cross linking a linear polymer.” See page 12 of Polymer
Chemistry: An Introduction by Seymour et al., Marcel Dekker, Inc., 1981.
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