Appeal No. 2001-0570
Application No. 09/049,591
what range of specific thickness is covered by the term “about.” It is our view that the
term “about” may make the claim a bit broader in scope but breadth should not be
equated with indefiniteness. See In re Miller, 441 F.2d 689, 693, 169 USPQ 597, 600
(CCPA 1971). We find it curious that the dissent finds the claim language indefinite, yet
the claimed invention is understood well enough to apply prior art against the claim.
This appears, to us, to be inconsistent. If certain claim language is not understood,
then any attempt to apply art against that claim can only be based on speculation.
Rejections of claims over prior art should not be based on speculation as to the
meaning of terms employed and assumptions as to the scope of the claims. In re
Steele, 305 F.2d 859, 862, 134 USPQ 292, 295 (CCPA 1962).
Accordingly, since we do not find the instant claim language indefinite, we will
not sustain the rejection of claim 1 under 35 U.S.C. § 112, second paragraph.
With regard to the rejection under 35 U.S.C. § 103, it is the examiner’s position
that Tatsumi teaches a capacitor having a first electrode including a surface of HSG
(rugged polysilicon) with a grain size of about 300 angstroms, pointing to column 7, line
26 and to Figures 4, 6, 8 and 16; a dielectric on the surface; and a second electrode on
the dielectric, pointing to Figure 16. The examiner contends that Tatsumi fails to teach
the deposition of HSG (rugged polysilicon) with a maximum grain thickness of about
300 angstroms but points to column 7, lines 14-39, of Tatsumi for a teaching of
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