Test takers report a variation of question #10 from the October 2003 (AM) patent bar exam is in the Prometric database.
10. In accordance with the patent laws, rules and procedures as related in the MPEP, definiteness of claim language under 35 U.S.C. 112, second paragraph must be analyzed, not in a vacuum, but in light of:
(A) The content of the particular application disclosure.
(B) The teachings of the prior art.
(C) The claim interpretation that would be given by one possessing the ordinary level of skill in the pertinent art at the time the invention was made.
(D) The claim interpretation that would be given by one possessing expert skill in the pertinent art at the time the invention was made
(E) (A), (B) and (C).
ANSWER: (E) is the most correct answer. As set forth in MPEP § 2173.02, “[d]efiniteness of claim language must be analyzed, not in a vacuum, but in light of: (A) The content of the particular application disclosure; (B) The teachings of the prior art; and (C) The claim interpretation that would be given by one possessing the ordinary level of skill in the pertinent art at the time the invention was made.” Answers (A), (B) and (C) each identify criteria to be analyzed in considering whether claim language is definite, therefore answer (E) which includes each of these answers is the most correct answer. Answer (D) is incorrect since it does not include criteria (C).
Does anyone know what the variation is?
Option C says “one of ordinary skill” and option D says “one possessing expert skill”.
According to 2173.01
The essential inquiry pertaining to this requirement is whether the claims set out and circumscribe a particular subject matter with a reasonable degree of clarity and particularity. Definiteness of claim language must be analyzed, not in a vacuum, but in light of:
(A)The content of the particular application disclosure;
(B)The teachings of the prior art; and
(C)The claim interpretation that would be given by one possessing the ordinary level of skill in the pertinent art at the time the invention was made.
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