Appeal 2007-2236
Application 10/991,738
1 (2)
2 Enablement
3 If we were to construe claim 89 on appeal to cover an article, we
4 would consider the article to be something that looks like the article in Fig. 1
5 having (1) a surface and (2) a superconductor layer. The superconductor
6 layer would be made of an oxide having the empirical formula AB2Cu3O7-x
7 where A is a rare earth metal and B is an alkaline earth metal. Given that
8 "barium fluoride" is mentioned in claim 89, it may be that Rupich intends to
9 limit the B to barium. But see claim 90. In any event, the superconductor
10 layer must have a thickness of at least 0.5 micrometers and a critical current
11 density of at least about 1 x 106 amperes per square centimeter. We note that
12 a broader invention is described in the specification in the sense that smaller
13 thicknesses are described in some examples and the critical current density
14 of claim 89 is what is characterized as the "more preferably" embodiment.
15 Rupich is apparently dedicating to the public the articles where the
16 superconductor has a thickness of at least about 0.5 micrometers but lack the
17 claimed critical current density.
18 A claim in an unpredictable art must be supported by an enabling
19 disclosure commensurate in scope with the breadth of the claim. Corona
20 Cord Tire Co. v. Dovan Chemical Corp., 276 U.S. 358, 385 (1928)
21 (discussion dealing with claims 1,5 and 9); Consolidated Electric Light Co.
22 v. McKeesport Light Co., 159 U.S. 465, 474-75 (1895); In re Fisher, 427
23 F.2d 833, 839, 166 USPQ 18, 24 (CCPA 1970).
24 For the purpose of the appeal, we have accepted Rupich's contention
25 that the critical current density is "unexpected." We note that unlike many
26 other applicants, Rupert appropriately and properly recites its alleged
14
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