Ex parte HURST - Page 4




              Appeal No. 1999-0547                                                                 Page 4                 
              Application No. 08/615,790                                                                                  


              caused by the fact that the ingredient supply chambers had sloped sides that supported                      
              almost the entire weight of the ingredients being fed into the auger, which resulted in                     
              upward forces being applied by the slowly rotating auger immediately above the auger.                       
              The appellant’s invention overcomes this problem.  It is manifested in claim 1 by the                       
              requirement that the blender apparatus comprise, inter alia, “an elongate tubular hopper . .                
              . extending substantially vertically upward . . . and providing an unobstructed substantially               
              vertical flow of unmetered ingredient to said auger housing, whereby substantially the                      
              entire weight of said unmetered ingredient within said tubular hopper bears upon said                       
              auger.”                                                                                                     
                     McLeod discloses a blender apparatus that has considerable structure in common                       
              with the appellant’s claimed invention.  However, McLeod has not focused upon the                           
              problem solved by the appellant’s invention and, as best shown in Figure 6, the elongate                    
              tubular hoppers (134 and 136) are inclined at about thirty degrees to the vertical.  While the              
              appellant has contended that this does not qualify as being “substantially vertically”                      
              oriented, as required by claim 1, the examiner has taken the position that this showing falls               
              within the scope of the claim because the appellant “does not show us any standard by                       
              which to measure or determine what ‘substantially vertical’ means” (Answer, page 6).  We                    
              do not agree.  When a word of degree is used in a claim, a determination must be made                       
              whether the patent specification provides some standard for measuring that degree, that                     









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