Appeal No. 2000-1862
Application 08/834,061
In this respect, while we find that The New IEEE Standard Dictionary of Electrical and
Electronic Terms appears to be the closest subject matter to appellant’s claimed invention,
appears to reflect the disclosure of “Far ultraviolet 100-200 nm” therein is at odds with the
disclosure of “a distinguished spectral feature at about 257nm” for erbium dopants, including
erbium nitrate (specification, e.g., page 8, lines 12-28; page 16, lines 3-7; page 20, lines 1-3),
although we also note the disclosure that the “calibration point deep in the UV, at about 257nm,
in the spectral region were [sic, where] a large number of end users operate UV absorbance
detectors” (id., page 16, lines 22-26). In order to avoid piecemeal appellate review, we find that,
on this record, a reasonable, conditional interpretation of appealed claim 37 based on the
specification that is adequate for purposes of resolving prior art issues can be made without
unsupported speculative assumptions, and thus, for purposes of this appeal, we interpret the
phrase “the far UV range” in appealed claim 37 to include “at least about 257nm.” 6 Cf. Steele,
supra; Saceman, supra.
It would also be readily apparent to one of ordinary skill in this art from the specification
that the “at least one spectral feature . . . in the far UV range [that] is discernable,” that is, an
emission peak or valley (e.g., page 2; page 13, lines 19-20, page 16, lines 6-9, and Fig. 4), can be
tailored to the “control value” for calibration of an optical instrument by routine experimentation,
or the calibration “control value” for that optical instrument can be set to the “spectral feature”
(e.g., pages 4-7; page 10, lines 7-20; page 13, lines 25-26, page 23, lines 11-13, and Fig. 7; page
17, lines 24-27).
Accordingly, we interpret appealed claim 37, and appealed claims 3, 5 and 7 dependent
“Table 1. Regions of the Electromagnetic Spectrum” summarizes the conventional “energy
regions characterized by the different experimental techniques employed and the various nuclear,
atomic, and molecular processes that can be studied,” which tabular information includes
near ultraviolet (uv) 200-400 nm
vacuum ultraviolet 10-200 nm
Kirk-Othmer Encyclopedia of Chemical Technology, 22, 629-30 (4th ed., New York, John Wiley
& Sons, 1996).
6 While we have so considered appealed claim 37, the matter of whether this claim and claims
dependent therein comply with § 112, second paragraph, should be addressed by the examiner
upon any further consideration thereof before the examiner subsequent to this appeal.
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