Appeal No. 2002-0901
Application 09/126,996
It is our view, after consideration of the record before us,
that claims 9, 10, 19 and 25 particularly point out the invention
in a manner which complies with 35 U.S.C. § 112. We are also of
the view that the collective evidence relied upon and the level
of skill in the particular art would not have suggested to one of
ordinary skill in the art the obviousness of the invention as set
forth in claims 1-29. Accordingly, we reverse.
We consider first the rejection of claims 9, 10, 19 and 25
under the second paragraph of 35 U.S.C. § 112. The examiner’s
rejection states that the term “about” in these claims is
indefinite without a scale of reference [final rejection, page
3]. Appellant argues that the phrase “less than about five
seconds” in claim 9 is a clear, but flexible definition that
comports with the standards set forth in Ex Parte Eastwood, 163
USPQ 316 (Bd. Of Pat. App. & Int., 1968) and MPEP § 2173.02
[brief, pages 3-5]. The examiner responds by repeating the
position that the term “about” is not specific enough [answer,
page 3].
The general rule is that a claim must set out and
circumscribe a particular area with a reasonable degree of
precision and particularity when read in light of the disclosure
as it would be by the artisan. In re Moore, 439 F.2d 1232, 1235,
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