Appeal No. 96-0881
Application No. 07/795,908
the claim language is used in a manner contrary to its
accepted meaning in the art. See the MPEP § 2173.01.
Moreover, further ambiguity is raised by the arguments of
counsel which imply that the claimed step in question
alternatively covers a step of actually measuring the
concentrations of the concentrate components to be combined.
In light of the foregoing, we find that the claims on appeal
do not define the metes and bounds of the invention with a
reasonable degree of precision and particularity. Therefore,
pursuant to our authority under 37 C.F.R.§ 1.196(b), we enter
a new rejection against the appealed claims under 35 U.S.C. §
112, second paragraph.
We now turn to the prior art rejections before us. Under
the circumstances recounted above, it is our view that the
metes and bounds of the appealed claims cannot be readily
ascertained. Thus, the prior art can only be applied against
the claims based on conjecture and supposition and this is not
a proper basis for a rejection under 35 U.S.C. § 102(b).
Compare In re Steele, 305 F2d 859, 862, 134 USPQ 292, 295
(CCPA 1962). Accordingly, we reverse the prior art rejections
of the claims. We make clear, however, that we are not
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007