Appeal No. 95-0922
Application No. 08/082,907
in Figure 1, a substantially even particle size distribution is
achieved for the crushed material for the intermediate particle
fraction; i.e. material retained on the U.S. mesh numbers 12
(1680 microns), 16 (1190 microns), 20 (841 microns), 30 (595
microns), 40 (420 microns), 60 (250 microns), 100 (149 microns)
and 140 (105 microns)" (specification, page 40). Thus, when
reading the claim language and specifically the language
"substantially even... distribution" in light of the
specification disclosure, we are confident that the metes and
bounds of protection circumscribed by the appealed claims would
be reasonably precise and particular to one with ordinary skill
in the art. In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238
(CCPA 1971).
It follows that we cannot sustain the examiner's rejection
of claims 1 through 7 under the second paragraph of 35 U.S.C.
§ 112.
As for the section 102(b) rejection, we cannot agree with
the examiner's aforequoted position that "[t]he specific particle
size distribution as claimed herein would be inherent in the
Borchardt material". It is apparent that patentee's disclosure
at lines 28 through 42 in column 3 of size ranges and quantities
for his almond flakes, fibers and granules simply do not
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