Appeal No. 1995-0770
Application No. 07/929,457
permits. As a matter of law, no court can demand more”), cert. denied, 107 S. Ct. 1606
(1987).
The claims as originally filed may be fairly read as embracing a process where
temperature was held within a range during each of the three polymerization stages: “...
maintaining ... a temperature within the range of from about n to about mEC.” Original
claim 1. On August 12, 1992, Appellants filed an amendment inserting “substantially
constant” before temperature in the quoted phrase, expressly relying on Example 1 for
support. Paper No. 9 page 8.
The examiner maintains that “[a]ppellants’ use of ‘substantially constant’ in the
claims is indefinite.” The examiner’s explanation is that “[t]he temperature held constant
can be considered as substantially constant but not over the temperature range claimed.”
Answer page 6. We do not agree with the examiner that the claim means temperature is
held constant over the range claimed. The amendment inserting “substantially constant”
clarified the claims such that a temperature selected from within the range would be
maintained, as exemplified by the specification in Example 1, page 43. Thus, the
amended claims are in contrast to the originally filed claims, and particularly point out an
embodiment similar to Example 1.
Appellants argue that the claims define the invention with a reasonable degree of
particularity and distinctness when read in view of the entire disclosure. We agree. The
rejection finding the claims indefinite is reversed.
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