Appeal No. 1995-1304
Application No. 07/947,071
differences as shown by the reference exemplifying
such conditions noted above. Here definiteness is
evident for a given physiological set of conditions.
For those conditions not readily found in
references, an ordinarily skilled artisan can make a
definite determination of the actual conditions of
various physiologies with virtually no
experimentation given the technology available today
to measure temperature and pH.
We have carefully reviewed and reflected on the above-quoted
statement, but are at a loss to understand just what
appellants mean by the expression "physiologically relevant
conditions."
The rejection of claims 1, 3 through 7, 23, and 25
through 30 under 35 U.S.C. § 112, second paragraph, as
indefinite in view of the expression "physiologically relevant
conditions" is affirmed. We shall not pass on the rejection
of claims 1, 3 through 7, 23, and 25 through 30 under
35 U.S.C. § 112, first paragraph, as based on a non-enabling
disclosure in view of the expression "physiologically relevant
conditions." Where, as here, the scope of the claims is
unclear, we cannot engage in a meaningful analysis under
35 U.S.C. § 112, first paragraph. Cf. In re Moore, 439 F.2d
1232, 1235, 169 USPQ 236, 238 (CCPA 1971) (Claims must be
analyzed first to determine exactly what subject matter they
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