Appeal No. 2006-0041 5
Application No. 10/037,377
to the public the extent of the legal protection afforded by the patent, so that interested
members of the public, e.g., competitors of the patent owner, can determine whether or
not they infringe. All Dental Prodx LLC v. Advantage Dental Products Inc., 309 F.3d
774, 780, 64 USPQ2d 1945, 1949 (Fed. Cir. 2002), citing Warner-Jenkinson, 520 U.S.
at 28-29. (Fed. Cir. 1997). The standard is one of reasonableness: The claims must set
out and circumscribe a particular area with a reasonable degree of precision and
particularity. In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 239 (Fed. Cir. 1971);
see In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ 2d 1754, 1761 (Fed. Cir. 1994)
(The legal standard for definiteness is whether a claim reasonably apprises those of skill
in the art of its scope.)
Claim 15 discloses an absorbent article that comprises a baffle, an absorbent,
and a retainer flap. Lines 8-9 recite: “a retainer flap extending over said baffle and
covering, greater than about 40 percent of the surface.” Lines 16-17 recite: “whereby
said retainer flap covers a portion of said baffle.”
We determine that the Examiner has misinterpreted the claim. According to the
Examiner’s interpretation, “greater than about 40 percent” means “greater than from 40
percent to 100 percent.” However, “greater than about 40 percent” means just that:
“greater than about 40 percent”. There is no limitation placed on the upper endpoint of
the range.
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