Appeal No. 1998-2287
Application No. 08/211,157
admission, “[w]hether a film is ‘crystalline’ or ‘amorphous’
is a matter of degree and definition.” (Paper 10, page 4.)
Thus, the appealed claims recite a term of degree for which
the specification must contain some standard for measuring the
degree. Seattle Box Co., Inc. v. Industrial Crating &
Packing, Inc., 731 F.2d 818, 826, 221 USPQ 568, 574 (Fed. Cir.
1984).
Despite the appellant’s reliance on a term of degree
(i.e., “substantially amorphous”) to distinguish over the
applied prior art, the specification lacks an express
definition for the term. It is true that the specification
explains that: (i) a <111> x-ray diffraction peak intensity of
26 counts per second is considered “substantially amorphous”
(specification, pages 19 and 21); (ii) “around 100 counts per
second” would be considered “nearly amorphous” (id. at page
24); and (iii) 863 counts per second would be considered
“essentially crystalline” (id. at page 20). However, the
specification does not define the scope of the term
“substantially amorphous” and thus one skilled in the art
would be unable to ascertain the metes and bounds of the
claimed subject matter.
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