Appeal No. 2005-2102
Application No. 10/077,346
would reasonably understand the claim when read in the context of
the specification. See Union Pac. Res. Co. V. Chesapeake Energy
Corp., 236 F.3d 684, 692 (Fed. Cir. 2001). Words of degree, such
as “relatively flexible” and “relatively inflexible,” are not per
se indefinite but there must be some definitions or guidelines in
the specification to allow one skilled in the art to determine the
metes and bounds of these claimed terms. See Seattle Box Co., Inc.
V. Industrial Crating & Packing, Inc., 731 F.2d 818, 826, 221 USPQ
568, 574 (Fed. Cir. 1984). Here appellant fails to point to any
particular definitions or guidelines in the specification for the
contested terms, with the specification using similar words of
degree in “defining” these terms (see ¶ 0049 of the specification).
Accordingly, we agree with the examiner that as the claims now
read, surmise and conjecture must be used to determine whether a
liner would have the property of flexibility within the scope of
the claims. See Ex parte Anderson, 21 USPQ2d 1241, 1249 (Bd. Pat.
App. & Int. 1991). Therefore we affirm the examiner’s rejection of
claims 25 and 26 under the second paragraph of section 112.
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