Appeal 2006-3333
Application 10/324,601
apparatus claim does not defeat a finding of anticipation. In re Schreiber,
128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997).
We agree with the Examiner’s finding that the structural features
recited in claims 1, 18, 29, and 40 are disclosed by Bryan’s Figure 1 water
gun embodiment. Moreover, we find that Bryan’s water gun structure is
inherently capable of performing the claimed functions. Schreiber, 128 F.3d
at 1478, 44 USPQ2d at 1432.
Regarding Appellant’s argument that Bryan does not disclose “any
means for creating a buoyant field of luminescent particles” (i.e., feature (1)
above) (Br. 13-14, 15, 17, 21), we find that, upon ejection from the water
gun, the stream of luminescent particles and water is temporarily buoyant
such that Bryan’s water gun is capable of creating “a buoyant [or airborne]
field of luminescent particles” as required by the claims. The claims do not
require the luminescent particles be permanently buoyant and Appellant’s
Specification does not disclose permanent buoyancy of the luminescent
particles.
Regarding Appellant’s feature (2), we are unpersuaded by Appellant’s
argument that Bryan does not disclose “any means for changing the
luminance of particles within a buoyant field” (Br. 14, 16, 18, 21) or “a
source of activating agent for changing the luminance of some of the
luminescent particles within a buoyant field of luminescent particles by
causing a chemical reaction” (Reply Br. 4). We find that Bryan discloses the
Figure 1 embodiment uses two “housings” 10 and 12 to separate the
activator from the luminescent particles so that when mixed the luminance
of at least some of the luminescent particles in the water stream is changed,
such that “some” of the luminescent particles necessarily undergo a
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