Appeal No. 97-1079
Application 08/562,471
on which it is based. See In re Cohn, 438 F.2d 989, 993, 169
USPQ 95, 98 (CCPA 1971).
Applying these principles to the present case, we are of the
opinion that the recitations in independent claim 1 of (1) the
impaling device “being locatable in either an extended position
or a retracted position” and (2) “each foot pad section being
retractable locating of its respective said impaling device”
introduce uncertainty into the claim which would preclude one
skilled in the art from determining the metes and bounds of the
claimed subject matter. As to limitation (1), the appellant’s
impaling device 154 is not “locatable” in either an extended or
retracted position as set forth. Instead, it is the sleeve 152
and the attached foot pad 166 which are extended (and either
locked in the extended position or yieldingly maintained in the
extended position by the bias of spring 162) and retracted so as
to either cover or uncover the stationary impaling device 154.
Thus, not only does this limitation fail to accurately define the
invention in the technical sense, but the language thereof, when
read it light of the appellant’s own disclosure, results in an
inexplicable inconsistency that renders independent claim 1
indefinite. As to limitation (2), while it is clear that each
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