Appeal No. 2001-0150
Application No. 09/250,617
language or modes of expression are available. Some latitude in
the manner of expression and the aptness of terms is permitted
even though the claim language is not as precise as the examiner
might desire. If the scope of the invention sought to be
patented cannot be determined from the language of the claims
with a reasonable degree of certainty, a rejection of the claims
under 35 U.S.C. § 112, second paragraph, is appropriate.
With this as background, we analyze the specific
rejections under 35 U.S.C. § 112, second paragraph, made by the
examiner of the claims on appeal.
In the instant case, the examiner is of the opinion that:
Claim 5 is rendered indefinite since the claim fails to
further limit the structure of the claim.
Specifically, it should be noted that claim 4 only sets
forth one shoe rack and therefore reliance on a
“plurality” is improper. Moreover, since only one rack
has been previously set forth, there clearly can be no
antecedent basis for “said suspended shoes racks”.
Further, there are no structural recitations to support
the functional recitation of intended use in the
“wherein” clause that is in claim 5. Further, it is
unclear what makes the instant rack “capable” of
nesting [answer at page 5].
We will not sustain this rejection. In our view, when this
claim is read in light of the specification, the metes and bounds
of the claim are clear. Specifically, the specification
discloses and Figure 4 depicts that the shoe racks can be nested
together due to the inclined configuration and structural
4
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