Appeal No. 98-1019
Application 08/500,782
“consisting of” in line 1 of claim 26 is inconsistent with the
requirement found in the last two lines of the claim that the
application assembly thereof “is an applicator (1) in
accordance with claim 1.” This is so because claim 1 is in
open-ended “including” format and therefore does not exclude
the presence of other elements.
Another difficulty with claim 26 stems from the term
“application member” appearing in line 3 thereof. It is not
clear whether this application member is the same as, or
distinct from, the “application member” of the claim 1 device
incorporated by reference into claim 26. Additionally, the
term “the storage position” (claim 26, lines 3 to 4) lacks a
proper antecedent basis, such that it is not clear what
position constitutes the storage position.
A last difficulty arises from claims 12 and 21, which
depend ultimately from claim 1. It is not understood how a
stem that includes at least one region consisting of a helical
spring, as required by claim 12, or how bristles having slight
corrugations, as required by claim 21, can define an
applicator wherein “the stem and the application member form a
curve with a substantially constant curvature,” as called for
-8-
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