Appeal No. 1998-0408
Application No. 08/176,861
force required to tear the strip) is necessary to fall within
the scope of the claimed subject matter. The only guidance
provided by appellants' specification3, aside from a statement
which merely reiterates the claim language itself (page 2), is
a disclosure that "[o]ne ideal material for the strip 11 is
eight point KIMDURA waterproof paper available from Kimberly
Clark" (page 7, lines 8-10)4. We cannot glean from
appellants' specification any fair understanding of the forces
in the intended environment which would be deemed to
"jeopardize the safety of the wearer" if the strip did not
tear or, indeed, a standard for determining what constitutes
jeopardy of safety so as to enable one of ordinary skill in
the art to ascertain the metes and bounds of the claimed
invention.5 Moreover, appellants have not argued, let alone
3 When words of degree are used in a claim, it is necessary to determine
whether the specification provides some standard for measuring that degree.
See Seattle Box Company, Inc. v. Industrial Crating & Packing, Inc., 731 F.2d
818, 826, 221 USPQ 568, 573-74 (Fed. Cir. 1984).
4 In this regard, the examiner's statement, quoted supra, that
appellants do not disclose the specific material from which the wristband is
made is inaccurate.
5 From our point of view, appellants' reliance (brief, page 6) on In re
Caldwell, 319 F.2d 254, 138 USPQ 243 (CCPA 1963) (at issue was a limitation
involving an effective amount of aspirin to promote growth) and In re Marosi,
710 F.2d 799, 218 USPQ 289 (Fed. Cir. 1983) ("essentially free of alkali
(continued...)
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