Appeal No. 1998-3074
Application 08/804,850
§ 1.196(b), we reject this claim and its respective dependent claims 20 through 26 under
the second paragraph of 35 U.S.C. § 112, because there is a fatal indefiniteness feature in
claim 19. The claimed “a layer of patterned metal” clause includes a recitation pertaining
to the formation of “at least one fuse link portion of the top layer of patterned metal forming
a fuse link (emphasis added).” There is no antecedent basis in this claim of a previous
recitation of a top layer of patterned metal or that the claimed “a layer of patterned metal”
is to comprise the recited “the top layer of patterned metal.” Thus, the claim is fatally
defective as to whether it recites two such patterned metal layers, one of which is the top
layer or, in the alternative, whether the claimed “a layer of patterned metal” is to be
construed as the claimed top layer of patterned metal as well.
Because of this fatal indefiniteness of independent claim 19, we must reverse the
rejection under 35 U.S.C. § 103 because it is not possible to properly apply the prior art
relied upon to the claim that is considered to be fatally indefinite.
We will not resort to speculation and conjecture in order to discern what the subject matter
of claim 19 and its dependent claims is to comprise. Note In re Steele, 305 F.2d 859,
1(...continued)
to be more pertinent or as pertinent as the subject matter of Simmons along with the
associated discussions in the related art topic beginning at page 1 of the specification and
the specific portion of the specification discussing these respective figures.
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