Appeal No. 2006-2210
Application 09/944,230
Pages 6 and 7 of the answer focus initially in the examiner’s
Responsive Arguments upon the use of the term “substantially” as
describing the claimed surface. The discussion there from prior case law
emphasizes that the term indicates an approximation rather than a perfect
recitation of a feature since such a term is a term of degree. It is further
explained that such a descriptive term as “substantially” avoids strict
numerical boundaries to a specified parameter. Thus, we essentially agree
with the examiner’s remarks in the initial lines of page 7 of the answer that
the use of the word substantially is a broadening recitation in effect.
We do not agree with appellants’ views expressed in the brief and
reply brief as well as the continued reliance upon MPEP § 2125 as
supporting patentability of the present claims. The drawings of the
respective references to Yates, Kikuchi and Wang show relative or
comparative dimensions/surfaces among the plurality of dimensions/surfaces
illustrated. An artisan’s view of the depictions in the drawings of the
respective references relied upon by the examiner would clearly and plainly
indicate that the references meet, within 35 U.S.C. § 102, the broadly
defined limitation of substantially free of hills and valleys.
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