Appeal No. 2004-0893
Application No. 09/124,310 Page 5
page 4). From the examiner’s perspective, appellants are
seemingly acting as their own lexicographer in using these terms
in a manner contrary to their normal meaning but “the uncommon
definition” is not set forth in the specification.
Aside from not providing any direct evidence in support of a
differing common meaning for those claim terms so as to make out
a prima facie case of indefiniteness on the theory asserted2, the
examiner’s rejection fails because appellants’ original
application does set forth guidance as to what is meant by those
terms. For example, at page 1, lines 10-14 of appellants’
specification, towbar-guided industrial trucks are described as
including “electrically propelled low-lift trucks or high-lift
trucks which can be realized in the form of trucks where the
operator walks alongside or trucks which have a driver’s seat.”
At page 1, lines 4-7 of appellants’ specification, it is stated
that the towbar head of the towbar-guided industrial truck is the
location of various control elements for the truck, such as
lifting and propulsion elements. Appellants further refer to
2 The examiner (answer, page 4) asserts that the term tow
generally refers to “drawing or pulling along behind,” and hence
the claim terms “towbar head” and “towbar-guided industrial
truck” as used by appellants have a meaning that is not ordinary
and that is not determinable.
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