Appeal No. 2001-0644
Application No. 09/250,204
Vapor Transmission Rate Test set forth in the
specification at page 17, line 16, through page 18,
line 11. Appellants assert that the Water Vapor
Transmission Rate Test specifically describes the Test
procedure, including the equipment and conditions,
which are required to determine the water vapor
transmission rate of any sample backsheet material
regardless of how it is produced. Moreover, Appellants
assert that one skilled in the art, after reading the
specification including the Test procedure, would be
able to reproduce . . . and test the backsheet of their
absorbent product to determine whether their product
potentially infringes the claims.
Discussion
The test for compliance with the second paragraph of Section
112 is “whether the claim language, when read by a person of
ordinary skill in the art in light of the specification,
describes the subject matter with sufficient precision that the
bounds of the claimed subject matter are distinct.” In re Merat,
519 F.2d 1390, 1396, 186 USPQ 471, 476 (CCPA 1975). In other
words, does a claim reasonably apprise those of skill in the art
of its scope. In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ2d
1754, 1759 (Fed. Cir. 1994).
We have reviewed both the positions taken by the examiner in
the answer in rejecting the appealed claims under 35 U.S.C.
§ 112, second paragraph, and the arguments thereagainst advanced
by appellants in the brief that the rejection is not warranted.
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