Appeal No. 97-0755 Page 6
Application No. 08/400,066
(Fed. Cir. 1991) and In re Kaslow, 707 F.2d 1366, 1375, 217
USPQ 1089, 1096 (Fed. Cir. 1983).
The examiner's basis for this rejection (final rejection,
p. 2) is that "no where in the specification is there even an
example on the apparatus/equations necessary to determine this
vacuum" (i.e., the inferred desired fractional manifold
vacuum) and that the "examiner does not consider inferred
desired fractional manifold vacuum a term in the art."
The appellants argue (brief, pp. 2-3) that this rejection
is not sustainable since the appellants are allowed to be
their own lexicographers and the term "inferred desired
fractional manifold vacuum" is defined at pages 5-6. We
agree. A rejection on the description requirement is
tantamount to a new matter rejection. Both are fully defeated
by a specification which describes the invention in the same
terms as the claims. See In re Bowen, 492 F.2d 859, 864, 181
USPQ 48, 52 (CCPA 1974). Since the appellants' specification
at pages 5-6 describes the "inferred desired fractional
manifold vacuum" in the same terms as used in the claims, we
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