Appeal No. 2000-0503 Page 15
Application No. 08/902,031
Claims 1 and 47-82 are rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the subject matter which the
appellants regard as the invention.
The phrase "essentially mostly" used in these claims is a term of degree. When a word
of degree is used in a claim, it is necessary to determine whether the specification provides
some standard for measuring that degree. See Seattle Box Company, Inc. v. Industrial Crating
& Packing, Inc., 731 F.2d 818, 826, 221 USPQ 568, 573-74 (Fed. Cir. 1984).
In Seattle Box, the court set forth the following requirements for terms of degree:
When a word of degree is used the district court must determine whether the
patent's specification provides some standard for measuring that degree. The
trial court must decide, that is, whether one of ordinary skill in the art would
understand what is claimed when the claim is read in light of the specification.
In the present case, we have reviewed appellants' disclosure to help us determine the
meaning of the above-noted terminology. The appellants' specification states, at page 10, lines
14-16, that
[w]hile there may be some degree of settling of the tank 5 onto these elongate
members 73, the tank is essentially mostly suspended by the hangers 47.
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