Ex parte GRABHORN - Page 7




          Appeal No. 1999-2446                                       Page 7           
          Application No. 08/705,592                                                  


          precise as the examiner might desire.  If the scope of the                  
          invention sought to be patented can be determined from the                  
          language of the claims with a reasonable degree of certainty,               
          a rejection of the claims under 35 U.S.C.  112, second                     
          paragraph, is inappropriate.                                                


               Thus, the appellant may use functional language,                       
          alternative expressions, negative limitations, or any style of              
          expression or format of claim which makes clear the boundaries              
          of the subject matter for which protection is sought.  As                   
          noted by the Court in In re Swinehart, 439 F.2d 210, 160 USPQ               
          226 (CCPA 1971), a claim may not be rejected solely because of              
          the type of language used to define the subject matter for                  
          which patent protection is sought.                                          


               With this as background, we turn to the specific                       
          rejection under 35 U.S.C.  112, second paragraph, made by the              
          examiner of the claims on appeal.  With respect to independent              
          claim 6, the examiner stated (answer, pp. 4-5) that there was               
          insufficient structure recited in the claim to support the                  
          limitation that the wood fragments "do not have smooth                      







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