Appeal No. 1997-2436
Application No. 08/232,014
page 4 of the specification applicants describe the invention as directed to "the production
of particles or capsules of submicron dimensions, i.e. with a size of less than 1µm and
especially of between about 100 and 800 nanometers." Similarly, we note Example 6 at
page 11 of the specification which states "This gives nanocapsules with dimensions of
between 200 and 800 nanometers." The only reference to a "mean" value comes at page
13 of the specification which describes "type A microcapsules containing PABA* (mean
size 50 µm,)" and this relates not to the claimed invention but to a comparison with prior art
particles which are microcapsules.
Thus, if we give credence to the representations by applicants' representative at
oral argument, it would appear that the term "nanoparticles", as used in claim 24 has two
plausible interpretations: 1) all of the capsules or particles are of a size less than 1 micron;
or 2) at least some of the particles are less than 1 micron, but some are larger than 1
micron, with the mean value of the size of the particles being less than 1 micron.
Reference to the specification does not clarify this ambiguity since it fails to offer an
explicit definition of what applicants intended by the use of this term. Applicants'
representative, at the oral argument, urged that one skilled in this art would know that the
use of the terminology in the claim and the specification was intended to reflect "mean"
dimensions and not absolute values. However, applicants' representative has not called
our attention to any convincing documentation or evidence in this record which would
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