Appeal No. 2001-2612 Page 3
Application No. 09/479,741
Claims 7, 9, 10-12, 13-20 and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Frank.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the Answer
(Paper No. 9) and the final rejection (Paper No. 5) for the examiner's complete
reasoning in support of the rejections, and to the Brief (Paper No. 8) and Reply Brief
(Paper No. 10) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
The Rejection Under Section 112, Second Paragraph
The examiner is “unsure” as to what is meant by the phrase “distinguish different
levels of intensities of the respective states from one another,” and on that basis rejects
independent claims 1, 3 and 13 as being indefinite. The second paragraph of
35 U.S.C. § 112 requires claims to set out and circumscribe a particular area with a
reasonable degree of precision and particularity. See, for example, In re Johnson,
558 F.2d 1008, 1015, 194 USPQ 187, 193 (CCPA 1977). In making this determination,
the definiteness of the language employed in the claims must be analyzed, not in a
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