Appeal No. 2001-0644
Application No. 09/250,204
due to their recitation of a vapor permeable backsheet
having two zones with vapor permeability values
calculated as a Water Vapor Transmission Rate (WVTR).
The examiner is of the opinion that those skilled in
the art would not be reasonably apprised of the metes
and bounds of these claims since the specification does
not disclose how the film samples were prepared from
which the claims WVTR values were measured, i.e., what
patterns were used and how thick were the coatings.
[Answer, page 3.]
The examiner further posits (answer, page 6) that:
For one to determine whether a particular
backsheet meets the terms of these claims, i.e.,
infringes these claims, one would need to know, inter
alia if that backsheet possesses [a] WVTR value in
appellants[’] claimed range. It is not disputed that
the specification of the instant application does not
disclose how to prepare the sample films used to
measure the WVTR value. Thus, resort to the
specification of the instant application will not aid
in determining the scope of the rejected claims.
Appellants’ Position
The appellants’ position may be fairly summarized by
reference to the paragraph spanning pages 4 and 5 of the brief,
wherein the following view is expressed:
Contrary to the Examiner, Appellants assert that
the language in the claims of the instant application,
read in light of the teachings set forth in the
specification, is sufficient to define the metes and
bounds of the invention as required by 35 U.S.C. [§]
112, second paragraph. In particular, Appellants’
direct the Examiners [sic, Examiner’s] attention to
page 2, line 31 - page 3, line 2, of the specification
wherein the water vapor transmission rate value of a
material is described as being determined by the Water
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