Appeal No. 96-0107
Application 08/026,797
Office action (paragraph 3, paper no. 5). However, the comments
following the introductory statement clearly explain the alleged
indefiniteness of claims 1, 5 and 12. Manifestly, appellant
addresses the rejection of claims 1, 5 and 12 set forth in the
paragraph bridging pages 2 and 3 of the final Office action and
urges that the rejection under 35 U.S.C. § 112, second paragraph,
be reversed (Brief, pp.9-10). Furthermore, in an effort to
resolve the indefiniteness issue, appellant proposed to amend
claims 1 and 5 in at least one amendment filed under 37 CFR
§ 1.116 (Brief, pp.10-11; see also paper nos. 6 and 7).
Appellant is exalting form over substance. Therefore, for
purposes of this appeal we will consider the rejection of claims
1-20 under 35 U.S.C. § 112, second paragraph.3
We reverse the rejection. One of ordinary skill in the art
reading claims 1, 5 and 12 would understand that the openings
provided in the layer of dielectric material (1) align with and
(2) do not cover or obstruct, or in other words, are coextensive
with the holes in the microchannel plate. Compare In re
Mattison, 509 F.2d 563, 565, 184 USPQ 484, 486 (CCPA 1975) (use
3 The examiner properly points out that (Answer, p.7):
[I]f the Appellant was confused with the finality of the
office action mailed 10/28/94, they should have
petitioned the Office that the final was premature.
An examination of the record reveals that no petition has been filed.
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