Appeal No. 1999-0621
Application 08/378,376
the requisite standard (see page 4 in the first reply brief,
Paper No. 25) is not well taken because the statement gives no
guidance as to what “approximately” 0E and 90E might mean.
The difficulty with the limitation is exemplified by the
dispute in this appeal as to whether the limitation is met by
Ashton’s disclosure of a 5E angle, i.e., whether 5E is
“approximately” 0E. The record does not provide any
reasonable basis for answering this question one way or the
other. The case law cited by the appellants to support their
position (see page 4 in the first reply brief, Paper No. 25;
and page 3 in the second reply brief, Paper No. 27) is not 3
convincing due to the fact specific nature of the issue.
Moreover, the pertinent portions of the cited cases deal with
the issues of patentability over the prior art or infringement
rather than claim indefiniteness.
Thus, due to its inclusion of the word “approximately,”
claim 31, and claims 23 through 27 and 30 which depend
3 Amhil Enter. Ltd. v. Wawa, Inc., 81 F.3d 1554, 38 USPQ2d
1471 (Fed. Cir. 1996); Dippin’ Dots v. Mosey, 44 USPQ2d 1812
(N.D. Tex. 1997); Ex parte Shea, 171 USPQ 383 (Bd. App. 1970).
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