Appeal No. 2001-2454 Page 7
Application No. 09/267,355
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). However, for the reasons set
forth above, it is our view that the boundaries of claim 1 cannot be determined by one of
ordinary skill in the art.
In summary, we find claim 1 to be indefinite because there is no antecedent
basis for “the brake operating device” (lines 14 and 15), and because the interpretation
to be accorded to “a manual braking signal . . . generatable in a manually adjustable
brake operating device,” that is, the source of the manual braking signal, is not clear.
The indefiniteness of claim 1 is inherited by claims 2-17, which depend therefrom.
Method claim 18 recites the steps of “supplying . . . a manual braking signal to
the engine braking system,” providing a selective change-over between the automatic
braking controller and “a brake operating device which supplies the manual braking
signal,” and comparing the manual braking signal with a rotational speed dependent
braking limit value. The reasoning expressed above regarding the manual braking
device and signal which formed the basis for our conclusion that claim 1 is indefinite
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