Appeal No. 2002-1080 15
Application No. 09/372,149
normal usage of the modified McCarthy device one would inherently perform the steps
recited in the claim. In re King, 801 F.2d 1324, 1326, 231 USPQ 136, 138 (Fed. Cir.
1986).
Claim 18 depends from claim 17 and adds that the step of applying the cushion
member also conforms the cushion member to the specific curvature of the sole of the
foot. For the reasons discussed in our treatment of claim 9 supra, we shall not sustain
this rejection.
Claim 21
Claim 21 is directed to a foot protector comprising a cushion member of
substantially uniform thickness, and a “low tack” adhesive layer provided on at least a
portion of the foot-contact surface of the cushion member. Appellant argues (main
brief, page 21) that claim 21 patentably distinguishes over the applied references
because the “unusually strong” adhesive of McCarthy (column 3, line 18) used to hold
the sole to the bottom of the foot is the antithesis of the “low tack” adhesive recited in
the claim.
The term “low” used to describe appellant’s tack adhesive is a word of degree.
When words of degree are used in a claim, our reviewing court has directed us to look
to the underlying specification to determine if it contains “some standard for measuring
that degree,” that is, to see if the specification contains some guidelines by which one
of ordinary skill in the art would understand the scope or metes and bounds of the
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