Appeal No. 97-4294 Page 7
Application No. 08/294,155
precise as the examiner might desire. If the scope of the
invention sought to be patented cannot be determined from the
language of the claims with a reasonable degree of certainty,
a rejection of the claims under 35 U.S.C. § 112, second
paragraph, is appropriate.
Furthermore, appellants may use functional language,
alternative expressions, negative limitations, or any style of
expression or format of claim which makes clear the boundaries
of the subject matter for which protection is sought. As
noted by the Court in In re Swinehart, 439 F.2d 210, 160 USPQ
226 (CCPA 1971), a claim may not be rejected solely because of
the type of language used to define the subject matter for
which patent protection is sought.
With this as background, we analyze the specific
rejection under 35 U.S.C. § 112, second paragraph, made by the
examiner of the claims on appeal. The examiner determined
(final rejection, p. 2) that the claims were indefinite
because the phrase "at least about 2 times . . . 240
millimeters" defines the article in terms of something
other than itself, lending ambiguity as to what
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