Appeal No. 1996-1288
Application No. 08/227,576
Claim 24 is rejected under the second paragraph of 35
U.S.C. § 112 for failing to particularly point out and
distinctly claim the subject matter which the appellants
regard as their invention. According to the examiner, “[i]n
claim 24, the word ‘stoichiometric’ implies a chemical
reaction, but it is unclear what the reaction is” (answer,
page 4).
Finally, claims 2 through 6, 8 through 17, 19, 21 through
25 and 27 through 32 are rejected under 35 U.S.C. § 103 as3
being unpatentable over Brunnmueller in view of Connelly and
Bodenbenner.
For the reasons which follow, we cannot sustain any of
the above noted rejections.
The examiner has not clearly identified whether his
section 112, first paragraph, rejection is based upon an
enablement theory or a description theory. Although his
criticisms seem more closely related to the latter, the
3Claims 21, 23 and 24 inappropriately depend from now
cancelled claim 20. In accordance with the appellants’
indication on page 2 of the brief, we will treat these claims
as though they depend from claim 31 for purposes of resolving
the issues before us on this appeal. However, in any further
prosection that may occur, the inappropriate dependency of
claims 21, 23 and 24 should be corrected.
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