Appeal No. 96-1739
Application 08/227,301
of phase,” “about 12 inches” and “about one inch thick” are
sufficiently clear in light of the disclosure as to satisfy
the requirements of 35 U.S.C. § 112. As appellant points out,
these terms are used to indicate that an insignificant
deviation from the literal value can occur as long as the
deviation has an inconsequential effect on the performance of
the invention. Those persons skilled in this art would be
presumed to know what deviations have a consequential effect
on performance and which deviations have an inconsequential
effect on performance. Such artisans, therefore, should
understand the scope of the invention set forth in the claims.
Since we agree with appellant that the artisan having
considered the specification of this application would have no
difficulty ascertaining the scope of the invention recited in
claims 25 and 28-35, the rejection of these claims under the
second paragraph of 35 U.S.C. § 112 is not sustained.
We now consider the rejection of claim 25 under 35
U.S.C. § 103 as unpatentable over the teachings of Long, King
and Broadley. In rejecting claims under 35 U.S.C. § 103, it
is incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine,
8
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