Appeal No. 2004-1224
Application No. 09/532,379
in this art would have been apprised of the scope of this
contested claim language.
The examiner states that it is not clear whether appellant
intends “test characteristics” as developed by Consumer Reports
or JD Powers, or if appellant intends to derive a new set of
“test characteristics” from the actual vehicles which were
awarded a “best in class” rating (Answer, page 7). However, as
correctly argued by appellants (Brief, page 5), the specification
clearly discloses that “experimental tests are performed to
independently determine design and manufacturing characteristics
that are critical to excellent product performance”
(specification, page 5, ll. 5-8, italics added). Therefore we
determine that one of ordinary skill in this art would have been
readily apprised of the scope of this contested phrase in claim 1
on appeal, namely that independent testing is done to determine
critical design and manufacturing characteristics. The similar
phrase in claim 11 would also be definite for these same reasons.
The examiner also finds the phrase “illustrate the progress”
indefinite as recited in claims 14 and 15 since assigning a color
to a characteristic would only illustrate the present value
(Answer, page 7). As clearly disclosed in the specification
(page 11) and illustrated in Figure 2, the designation of each
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