Appeal No. 95-3781
Application 07/978,223
of sample II can be determined by "orientating the polarizer 3
or the analyzer 6 to provide three or more azimuthal angles."
Although the language in these claims is broad in that the
details of the arrangement are not recited, as pointed out by
the examiner, the claims are not indefinite. See In re
Gardner, 427 F.2d 786, 788, 166 USPQ 138, 140 (CCPA 1970)
(breadth is not indefiniteness).
If the examiner is of the position that one with
ordinary skill in the art would not know how to orient a
polarizer or analyzer to provide three different azimuthal
angles of polarized light, that view has not been expressed
and it would concern enablement 35 U.S.C. § 112, first
paragraph, not indefiniteness. We do not express any opinion
in that regard since lack of an enabling disclosure has not
been raised as an issue by the examiner and is not the basis
of the rejection on appeal.
In view of the foregoing, we will not sustain the
rejection of claims 6 and 9 under 35 U.S.C. § 112.
Turning next to the rejection of claim 1 as
unpatentable under 35 U.S.C. § 103 over Korth, we find that
Korth discloses an ellipsometer for measuring the
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