Appeal 2007-2584
Application 10/248,472
gas vessel at a rate that would fill a 5 kg vessel with the hydrogen gas in a
period of time of less than or equal to about 5 minutes” (claim 20).
These claim features are indefinite because we cannot determine from
the claims or Appellant’s Specification whether the “5 kg vessel” claim
feature is to be construed as the amount of hydrogen gas (i.e., 5 kilograms of
hydrogen) at maximum capacity, or simply the weight of the vessel itself.
Moreover, the recitation of supplying hydrogen gas “at a rate that
would fill a 5 kg vessel with the hydrogen gas in a period of time of less than
or equal to about 10 minutes” (claim 1) and the recitation of supplying
hydrogen gas “at a rate that would fill a 5 kg vessel with the hydrogen gas in
a period of time of less than or equal to about 5 minutes” (claim 20) render
the claims indefinite. We cannot determine from the claims or the
Specification if the filling rate recited in the claims is the time necessary to
reach the maximum capacity of the tank, or merely a partial filling of the
tank. The claims simply are not clear and the Specification provides no
assistance in determining the meaning of these claims.
Accordingly, we reject claims 1-4, 18-23, 27, and 28 under 35 U.S.C.
§ 112, 2nd paragraph, as being indefinite.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b) (2004). 37 C.F.R. § 41.50(b) provides “[a] new ground
of rejection pursuant to this paragraph shall not be considered final for
judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
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