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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