Appeal No. 2002-1395 Page 4
Application No. 08/789,702
OPINION
Our opinion addresses the rejections in the following order:
• indefiniteness rejection
• anticipation rejection
• obviousness rejection.
Indefiniteness Rejection
Rather than reiterate the positions of the examiner or the appellants in toto, we
address the two points of contention therebetween. First, the examiner asserts,
"[r]elatively flat in claim 13 is ambiguous (this is also present in claims 14-15, 48-50)."
(Examiner's Answer at 5.) The appellants argue, "further limitation of claim 13 is not
deemed necessary in the absence of cited prior art." (Appeal Br.1 at 26.) They cite
"page 45, lines 1-2" of their specification as corresponding to claims 13 and 48. (Id.
at 18-19).
"Definiteness problems often arise when words of degree are used in a claim."
Seattle Box Co. v. Indus. Crating & Packing, Inc., 731 F.2d 818, 826, 221 USPQ 568,
573 (Fed. Cir. 1984). "When a word of degree is used, such as the term 'relatively', it is
1We rely on and refer to the second supplemental appeal brief, (Paper No. 13),
in lieu of the original appeal brief, (Paper No. 8), and the first supplemental appeal brief,
(Paper No. 11), because the latter two briefs were defective. (Paper Nos. 9, 12.) The
original appeal brief and the first supplemental appeal brief were not considered in
deciding this appeal.
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