Appeal No. 2003-1512 6
Application No. 09/256,709
molecular weight of 10,000 to 200,000 would read on claim 1. See Brief, page 15.
Stated otherwise, although neither the specification nor the claims designate the type of
molecular weight utilized for the methacrylate polymer, the inventor declares that the
molecular weight referred exclusively to a number average molecular weight while the
appellants also argue that the scope of the claims is intended to read on any molecular
weight designation provided only that it falls within the range of 10,000 to 200,000.
These two arguments not only conflict with each other, they add to the ambiguity and
indefiniteness or the claimed subject matter.
Furthermore, the examiner has declined to give weight to the statement of declarant
Isogai that the molecular weight designated is a number average molecular weight and finds
it to be self serving and unsupported by evidence. We agree to the extent that there is no
supporting evidence. We further conclude that the appellants have failed to establish that
the examiner erred in failing to give weight to the declarant Isogai.
Furthermore, the record before us contains numerous references cited by both the
examiner and the appellants. Each of the references define molecular weight of polymers
similar to those present in the claimed subject matter in terms of the number average
molecular weight, the weight average molecular weight or other molecular weight
designations. We conclude based upon this evidence that the molecular weight is usually
and customarily explicitly identified including the nature of the molecular weight to which
reference is made. In addition, the appellants acknowledge that molecular weight can be
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