Appeal No. 1999-1349
Application No. 08/110,115 Page 5
pertinent art would understand what is claimed when the claim is
read in light of the specification. See Andrew Corp. v. Gabriel
Electronics, 847 F.2d 819, 821-22, 6 USPQ2d 2010, 2012-13 (Fed.
Cir. 1988); Seattle Box Co., Inc. v. Industrial Crating &
Packing, Inc., 731 F.2d 818, 826, 221 USPQ 568, 573-74 (Fed. Cir.
1984). Here, the examiner acknowledges that “approximately minus
5°C” is reasonably definite at pages 8 and 9 of the answer.
Moreover, the examiner maintains that it is the modification of
the term “about 5 seconds” with the phrase “for a period of no
more than” that results in uncertainty, not the term “about 5
seconds” per se.
We cannot agree with the examiner’s position on this record.
As explained by appellants (reply brief, page 2), the position of
the examiner espoused in the answer with respect to this issue is
illogical. Consequently, the examiner has not met the burden of
explaining how the appealed claims run afoul of the provisions of
the second paragraph of 35 U.S.C. § 112. Accordingly, we reverse
the examiner’s rejection under the second paragraph of 35 U.S.C.
§ 112.
Rejections under 35 U.S.C. § 103
Beginning with the examiner’s rejection of claims 1 and 8-
11, we note that the examiner acknowledges that Seney does not
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