Appeal 2006-3333
Application 10/324,601
luminance change (Bryan: col. 56, ll. 8-12). Additionally, Bryan discloses
air may be the bioluminescence activator to cause at least some of the
luminescent particles to change in luminance upon expulsion of the
water/luminescent particle mixture from the toy gun (Bryan: col. 56, ll. 30-
31). The ejected water/luminescent particle stream is buoyant as it moves
through the air as previously discussed. Therefore, Bryan’s Figure 1
embodiment (i.e., the toy water gun) is capable of “changing a luminance of
some of said luminescent particles within said buoyant [or airborne] field.”
Regarding Appellant’s feature (3) (i.e., the “wand” feature), Appellant
argues that Bryan’s water gun (i.e., wand) outputs a stream of liquid such
that “Bryan does not disclose using the water gun to write in a buoyant field
of luminescent particles” (emphasis added) (Br. 15). By Appellant’s own
words, he does not dispute the structure of the water gun (i.e., wand), but
rather how the water gun (i.e., wand) is being used (i.e., its method of use).
We find that Bryan’s water gun structure is inherently capable of writing in a
buoyant field. Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. For
example, if the gun is positioned to shoot directly upward, an uppercase
letter “I” or lowercase “l” would be formed.
For the foregoing reasons, we affirm the Examiner’s § 102(b)
rejection of argued claims 1, 18, 29, and 40 and non-argued claims 9, 10,
13-17, 24-28, 30, and 31 over Bryan.
METHOD CLAIM 32
Appellant argues that Bryan does not disclose a method having the
following steps required by claim 32: (1) “creating an airborne field of
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