Appeal No. 2001-1860
Application No. 08/993,104
that the language renders the claims indefinite under 35 U.S.C. § 112, second
paragraph.
Even if we were to ignore the claim syntax and read the term “asynchronously”
as referring to “other cells” within an LCD system, such an interpretation would also
render the subject matter indefinite. The term “asynchronously” would be measured
with respect to elements not set forth by the claims, and thus arbitrarily determined.
Another of the examiner’s concerns centers on the use of “substantially” before
“simultaneously and asynchronously.” Further, the use of “substantially” before
“predetermined rate” (in each of the independent claims other than 18) is also
considered by the examiner as rendering the subject matter indefinite.
We agree with appellants in general, as argued in the Brief, that the term
“substantially” may represent accepted practice in claim drafting, and such use fails to
per se make a claim indefinite. However, there must also be, to a reasonable degree,
some indication as to the bounds of the scope of protection afforded by the broadening
term “substantially.” Appellants point to nothing in the specification that would apprise
the artisan with respect to how distant from “simultaneous,” “asynchronous,” or
“predetermined” might be considered “substantially” simultaneous, asynchronous, or
predetermined.
With respect to “substantially simultaneously,” appellants argue that “one skilled
in the art would understand that the voltage potentials may not be stored at exactly the
same time due to a variety of reasons.” (Brief at 6.) Even if true, however, the
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