Appeal No. 1998-2451
Application No. 08/317,826
On page 5 of the answer, the examiner rejects claims 2, 6 and
28, stating that there is no support in the specification for the
phrase AP is between 1 and 2".
Appellants argue that the range of Ap is between 1 and 2" is
supported by 3 examples which cover the lower limit of “p is 1",
the upper limit of Ap is 2", and the mid point of “p is 1.5".
(Brief page 8).
We refer to the case of Ex parte Jackson, 110 USPQ 561, 562,
(Pat. & Trademark Office Bd. App. 1956). In this case, the claim
at issue recited, inter alia, Afrom 4% to 20%, of carbonA. The
specification provided for 4%, 15% and 20%, for the amount of
carbon. The examiner asserted that such a disclosure was not
sufficient for all the values between 4% and 20%. We held that in
fact such a disclosure was sufficient to support the claim range of
Afrom 4% to 20% of carbon@.
In the instant case, we have a similar situation, i.e., the
examples provide for the values of 1, 1.2, and 2. In view of Ex
parte Jackson, we also conclude that such a description supports
the claimed range of Ap is between 1 and 2".
In view of the above, we reverse the rejection of claims 2, 6,
and 28 under 35 U.S.C. ' 112, first paragraph (written
description).
III. Conclusion
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