Appeal No. 2001-0291 Page 12
Application No. 08/772,559
Independent claim 1 recites a barrier “that balances
section modulus, moment of inertia and membrane effect without
requiring substantially more material to reduce the tendency
of high center of mass vehicles from turning over.” As claim
1 does not define the reference relative to which the
“substantially more material” and reduction of the tendency of
high center of mass vehicles from turning over are measured,
it is not possible for one skilled in the art to determine
with any certainty the metes and bounds of the invention.
Consequently, we conclude that claim 1 fails to comply with
the second paragraph of 35 U.S.C. § 112. Claims 2-17 depend
from claim 1 and are likewise indefinite.
In the event that appellants’ claims are ultimately
amended to overcome the deficiency noted above, the examiner
may wish to consider the patentability of at least independent
claim 1, and perhaps several of the dependent claims as well,
over the prior art barrier described on pages 2 and 3 of
appellants’ specification. Appellants’ admitted prior art
barrier comprises upper and lower curved portions and an
effective depth of 7.63 inches, which falls within the range
of “between substantially 9 to 15 inches” recited in claim 1,
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