Appeal No. 98-1201 Page 6
Application No. 08/527,784
the examiner's basis for the rejection of claim 1 under the
second paragraph of 35 U.S.C. § 112 (see page 2 of the final
rejection), we have determined that claim 1 fails to
reasonably apprise those of skill in the art of its scope
since it is unclear to us exactly what subject matter claim 1
is reciting. In that regard, it is unclear whether the
appellant is claiming an exercise device for use in a swimming
pool or just the recited improvements to an exercise device.
It appears that the appellant may have intended claim 1 to be
a claim of the type specified in 37 CFR 1.75(e), i.e., a
"Jepson" claim, in which case the device being improved upon
should be recited in the preamble as part of the combination.
See 37 CFR § 1.75(e)(1). However, here the preamble of the
claim recites "Improvements for adapting for aquatic use an
exercise device of a type worn in encircling relation
[etc.]..., said improvements comprising...". This departure
from prescribed claim form makes it unclear whether the
appellant is claiming the exercise device in combination with
the improvements, or just the recited improvements per se.
The scope of the claim is particularly unclear because
although on the one hand the language in its preamble would
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