Appeal No. 2001-0378 Page 6
Application No. 08/873,876
terms is permitted even though the claim language is not as
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.
With this as background, we turn to the specific reason set
forth by the examiner as the basis for the rejection under
35 U.S.C. § 112, second paragraph. The examiner stated (answer, p.
4) that the phrase "resiliency index ..." as used in the claims under
appeal is vague and indefinite because "it is not clear what
materials applicant intends to encompass with such language. We do
not agree for the reasons set forth in the brief, the reply brief,
and the reasons that follow.
The independent claims on appeal read as follows:
1. A sole for use in an article of footwear in proximity to a
plantar surface of a foot, said sole having a resiliency index
in the range from about .05 to about .5, the resiliency index
being defined as a ratio (R-M)/(P-M), wherein P is a thickness
measured when only a pre-load is applied, M is a thickness
measured when both the pre-load and a main load are applied,
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