Appeal 2007-0086
Application 10/845,785
An imprecise term of degree, such as “substantially,” does not
automatically render a claim indefinite. Seattle Box v. Indus. Crating &
Packing, Inc., 731 F.2d 818, 826, 221 USPQ 568, 573-74 (Fed. Cir. 1981).
Whether the claim is indefinite depends upon whether the Specification
provides some standard for measuring the degree of the term such that an
artisan would understand what is claimed when the claim is read in light of
the Specification. Id. Therefore, the § 112, 2d ¶, question raised by an
imprecise term such as “substantially” is fact-dependent by its nature. Id.,
731 F.2d at 829, 221 USPQ at 576.
The Examiner is correct that the phrase “substantially cured,” though
recited in the Specification at page 11, line 23, is not accompanied by any
definition or guidance as to the meaning of “substantially.” The Appellants
state that “[p]ersons skilled in the art would appreciate that to be
‘substantially cured,’ the shape would be capable of being removed from the
mold while maintaining its desired shape” (Br. 7). However, no evidence
has been proffered in support of this statement.
Moreover, the statement is not compatible with the Specification
disclosure. This is because the afore-quoted meaning ascribed to
“substantially cured” in the Brief is described in the Specification, at page 1,
as relating to foundry shapes after the striptime has elapsed (ll. 25-31). On
the other hand, the Specification at page 2 describes foundry shapes as
“cured” when they can be used for casting metals (ll. 3-4). Therefore,
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