Appeal No. 2005-2531
Application No. 10/148,759
13-14 of the appellants’ specification. These definitions
provide an artisan with a standard for reasonably measuring the
degree encompassed by these claim phrases. However, we find no
express definition in the specification for the phrase
“substantially the same cross sectional area” on the penultimate
line of claim 1. The lack of an express definition raises the
issue of whether an artisan would have any standard for
reasonably measuring the degree encompassed by this last
mentioned claim phrase. For example, while dependent claim 4
evinces that a variation of 10 percent or less is encompassed by
the phrase “substantially the same cross sectional area,” we find
nothing in the application record which evinces that 10 percent
is the upper limit of this variation or whether degrees of
variation higher than 10 percent are encompassed by the phrase
under consideration.
In light of the foregoing, in response to this remand, the
examiner (and the appellants) must address and resolve on the
written record of this application whether the claim phrase
“substantially the same cross sectional area” complies with the
second paragraph requirements of Section 112, and if so, why, and
conversely if not, why not.
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