Appeal No. 2006-0823 Παγε 8
Application No. 10/284,474
as a result of these inconsistencies between the claims on appeal
and the description of the invention in the specification, we are
of the view that the claims on appeal do not recite subject
matter which the appellant regards as his invention as required
by the second paragraph of Section 112.
In other words, the appealed claims are inconsistent and
fail to particularly point out and distinctly claim appellant’s
invention as a final assembled lid and container including
aligned openings of both of those parts, including an entry hole
in at least one of those assembled parts with a hinge pin secured
or held in the aligned openings of both of those parts, as argued
in the briefs.
Looked at another way, it is reasonable to construe the language used in claims
1 and 5 as suggesting, albeit ambiguously, an intermediate unassembled part that
includes a hinge line forming portion rather than the final product argued by appellants
as invention. Of course, such a possible claim construction further evidences the
indefiniteness thereof and would yield the same result of the claims being in violation of
the second paragraph of Section 112. See In re Collier, 397 F.2d 1003,
1005, 158 USPQ 266, 267 (CCPA 1968).
Thus, we determine that the appealed claims run afoul of
both requirements of the second paragraph of § 112.
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