Appeal No. 98-0140
S.N. 08/401761
has not provided evidence (1) that in fact one skilled in
the art would not use CuKa as the source of radiation to
obtain the maximum X-ray diffraction peak for a titanyl
phthalocyanine crystal or (2) that in fact such a person
would have considered other types of radiation sources than
CuKa radiation to be suitable for obtaining the maximum X-
ray diffraction peak for a titanyl phthalocyanine crystal.
If the examiner had done so, maybe a different conclusion
would have resulted here. However, such evidence has not
been made of record in this case.
Additionally, we note that 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, then the claims fulfill the requirements of 35
U.S.C. 112, second paragraph. In re Wiggins, 488 F.2d 538,
541-2, 179 USPQ 421, 423 (CCPA 1973). Moreover, as stated,
supra, the claims must set out and circumscribe a
particular area with a reasonable degree of precision and
particularity. In re Moore, 439 F.2d 1232, 1235, 169 USPQ
236, 238 (CCPA 1971).
Here, based upon the preponderance of the evidence on
the record as analyzed above, we believe that appellants
have particularly pointed out and distinctly claimed the
subject matter which appellants regard as their invention
with a reasonable degree of precision and particularity and
with a reasonable degree of certainty. We believe that one
skilled in the art would not be speculative in concluding
that the scope of invention sought to be patented by
appellants, as set forth in their claims, is that CuKa
radiation is used to obtain the X-ray diffraction peak in
view of the preponderance of the evidence.
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