Appeal No. 2004-0267
Application 09/847,224
(pages referred to as "EA__") for a statement of the examiner's
rejection, and to the brief (Paper No. 11) (pages referred to as
"Br__") for a statement of appellant's arguments thereagainst.
OPINION
35 U.S.C. § 112, second paragraph
The examiner considers the phrase "determining a pattern" in
all of the independent claims to be vague and indefinite since it
is not clear what pattern is being determined (FR2). The
examiner asks the question (FR2): "What is forming the pattern
and what type of pattern is being formed?"
Appellant argues that it is readily apparent in the context
of the art and in light of the specification that the "pattern"
is a "search pattern," referring to the specification at page 8,
lines 17-20; page 11, lines 15-23; page 12, lines 7-12; Figs. 4B
and 5 and their associated text (Br7). It is noted that these
arguments were previously made but not addressed by the examiner
in the final rejection (Br7).
The term "pattern" is broad, but "[b]readth is not
indefiniteness," In re Gardner, 427 F.2d 786, 788, 166 USPQ 138,
140 (CCPA 1970). We do not consider the word "pattern" to be
indefinite. The specification discloses that the "pattern"
refers to the "pattern for the submunitions 120 to use in
searching for and locating the target 110" (page 8, line 8),
i.e., a search pattern. As to the examiner's question about
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