Appeal No. 2001-2366 Page 6
Application No. 08/926,533
articles are applied to the skin. Thus, what is meant by “cumulative amount” is not
clear. The claim further states that this cumulative amount must be “sufficient to
improve skin condition” in the area treated relative to skin in an untreated area. No
explanation of this limitation is apparent in the specification in that there is no
information from which the artisan can determine what level of accumulation
(“cumulative amount”) of skin care composition must be reached to be “sufficient to
improve skin condition” in the treated area as opposed to the untreated area.
We are mindful that the appellants are free to claim their invention in broad
terms and is entitled to the broadest reasonable interpretation of the claim language.
However, because a patentee has the right to exclude others from making, using and
selling the invention covered by the patent, the public must be apprised of exactly what
the patent covers, so that those who would approach the area circumscribed by the
claims of a patent may more readily and accurately determine the boundaries of
protection involved and evaluate the possibility of infringement and dominance. It is to
this that the second paragraph of 35 U.S.C. § 112 is directed. See In re Hammack, 427
F.2d 1378, 1382, 166 USPQ 204, 208 (CCPA 1970). It is our opinion that claim 1 fails
to meet this requirement because the indefiniteness of “sufficient frequency,”
“cumulative amount,” and “sufficient to improve skin condition” cause the metes and
bounds of the claim not to be determinable.
The same situation is present in independent claim 23.
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007