Appeal No. 2002-2319 Page 7
Application No. 09/129,197
The examiner’s position that claim 19 is indefinite because it describes the
invention in terms of a particular user is likewise not well taken. The claim at issue in
Ex parte Brummer, 12 USPQ2d 1653 (Bd. Pat. App. & Int. 1989), relied upon by the
examiner (answer, page 5), recited the spacing between the front and rear wheels of a
bicycle relative to “the height of the rider that the bicycle was designed for” (emphasis
ours). The Board found in Brummer that there was no evidence of record to show that
a known standard existed in the field of bicycle manufacturing for sizing a bicycle to a
rider and consequently that one or ordinary skill in the art would not have known what
size rider a particular bicycle was “designed for” and thus would have been at a loss to
determine whether a particular bicycle was covered by that claim. Id. at 1655. We
agree with appellant (brief, page 9) that claim 19 is more akin to the claim at issue in
Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1575, 1USPQ2d 1081,
1088 (Fed. Cir. 1986) reciting a wheelchair “wherein said front leg portion is so
dimensioned as to be insertable through the space between the doorframe of an
automobile and one of the seats thereof.” The Federal Circuit in Orthokinetics
determined that the claims therein were intended to cover the use of the invention with
various types of automobiles and considered the fact that a particular chair on which
the claims read may fit within some automobiles and not others to be of no moment, the
phrase “so dimensioned” being “as accurate as the subject matter permits, automobiles
being of various sizes.” Id. Appellant’s claim 19 recites the length of the panel of the
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