Appeal No. 2001-0271 Page 4
Application No. 08/855,474
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we make the
determinations which follow.
The indefiniteness rejection
The legal standard for definiteness is whether a claim
reasonably apprises those of skill in the art of its scope.
See In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ2d 1754, 1759
(Fed. Cir. 1994).
In rejecting claims 8-10 as indefinite, the examiner
contends that there is an inconsistency between the language
in the preamble in claim 5 and certain portions in the body2
of the claims, thereby making the scope of the claims unclear.
In particular, the examiner finds the recitation in each of
claims 8-10 of the middle layer(s) having the thickness of the
We presume that the examiner's specific reference to the language of2
the preamble of claim 1 was an inadvertent error, as claims 8-10 depend from
claim 5, not from claim 1. We presume that the examiner intended to refer to
the preamble of claim 5.
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