Appeal No. 2003-1512 5
Application No. 09/256,709
number of molecules present in a given molecular weight class.1 Regardless of the
molecular weight designation, there are numerous methods utilized to obtain molecular
weight measurements and the values obtained depend upon the method of measurement.
See Ex Parte Simpson, 61 USPQd2d 1009, 1011-12 (Bd. Pat. App. & Int. 2001). The
aforesaid case is substantially directed to the same issue of absence of molecular weight
identity as it related to the scope of the claimed subject matter. To the extent that the
factual presentation is substantially the same as the subject matter before us, we
incorporate the findings and analysis in our decision herein.
The issue before us is the scope of the molecular weight encompassed by the
molecular weight range. The appellants have submitted a declaration by one of the
inventors Isogai wherein the declarant states, “that in the application as originally filed, I
was referencing a number average molecular weight for the methyl methacrylate polymer.
Accordingly, the reference, for example 10-30% by weight of methacrylate polymer
having a molecular weight range of 10,000 to 200,000 in claim 1, as originally filed, was
intended to indicate a number average molecular weight.” In contrast the appellants argue
that, “[t]he fact that there may be more than one way of calculating molecular weight does
not make the boundaries of the claims ambiguous.” See Reply Brief, page 4. Furthermore
the appellants state that 10-30% of a methyl methacrylate polymer having a Z-average
1Encyclopendia of Chemical Technology, John Wiley & Sons, Volume 18, page 207 (3rd ed.
1982).
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