Appeal No. 2004-0323 Page 12
Application No. 09/716,045
With regard to claim 4, we agree with the appellants that the phrase "optionally
provided" does not render the claim indefinite. In Ex parte Cordova, 10 USPQ2d 1949,
1950 (Bd. Pat. App. & Inter. 1989) the language “containing A, B, and optionally C” was
considered acceptable alternative language because there was no ambiguity as to
which alternatives are covered by the claim. A similar holding was reached with regard
to the term “optionally” in Ex parte Wu, 10 USPQ2d 2031, 2032 (Bd. Pat. App. & Inter.
1989). See also Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Pat. App. & Int. 1991).
With regard to claim 13, the phrase "curtain wall" is definite since the metes and
bounds thereof would be understood by one skilled in the art by applying the ordinary
and customary meaning of those words.
We agree with the examiner that the features encompassed by "...diameter of
said column of air is variable within said chamber" as recited in claim 2 can't be
determined thus making that claim indefinite. The appellants' argument that this
function is accomplished by the secondary wall 21 is not persuasive since (1) parent
claim 1 provides that the surface of the primary wall, not a secondary wall that is
adjustable, defines the diameter of the column of air; and (2) the diameter of the
primary wall is not variable.
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