Appeal No. 2002-0185
Application 08/902,171
KRATZ, Administrative Patent Judge, concurring.
I concur with the majority’s disposition of the examiner’s
stated rejections as maintained on appeal. However, I write
separately to express different reasons for sustaining the
examiner’s decision rejecting claims 2-4 under 35 U.S.C. § 112,
second paragraph, as being indefinite for failing to particularly
point out and distinctly claim the subject matter which
applicants regard as the invention.
The relevant inquiry under 35 U.S.C. § 112, second
paragraph, is whether the claim language, as it would have been
interpreted by one of ordinary skill in the art in light of
appellants’ specification and the prior art, sets out and
circumscribes a particular area with a reasonable degree
of precision and particularity. See In re Moore, 439 F.2d 1232,
1235, 169 USPQ 236, 238 (CCPA 1971).
The fundamental purpose of a patent claim is to define the
scope of protection1 and hence what the claim precludes others
from doing. All things considered, because a patentee has the
right to exclude others from making, using and selling the
invention covered by a United States letters patent, the public
1 See In re Vamco Machine & Tool, Inc., 752 F.2d 1564, 1577
n.5, 224 USPQ 617, 625 n.5 (Fed. Cir. 1985).
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