Appeal No. 97-4182
Application 08/429,150
In view of the foregoing, we will not sustain the rejection
of claim 1 under 35 U.S.C. § 112, second paragraph,.
We reach a different conclusion, however, with respect to
claim 2 inasmuch as this claim is totally inconsistent with claim
1 from which it depends. That is claim 1, as we have noted
above, clearly sets forth the combination of a rain fly and a
canopy in their erected state, with the canopy being set forth as
being guyed to or supported by the fly. On the other hand, claim
2 (which depends from claim 1) in an apparent contradistinction
sets forth a fly that is either (1) used with or without a canopy
underneath or (2) attached or unattached to the canopy, thus
resulting in an inexplicable inconsistency that renders this
claim indefinite. That is, it raises the question of whether (1)
a fly per se (e.g., as illustrated in Fig. 1) is being claimed,
(2) a fly per se in its erected state (e.g., as illustrated in
Fig. 2) is being claimed or (3) a fly in an erected state in
conjunction with a canopy underneath (e.g., as set forth in
parent claim 1 and depicted in Fig. 3) is being claimed. Since
we are of the opinion that claim 2 does not reasonably apprise
those of skill in the art of its scope, we will sustain the
examiner’s rejection of this claim under 35 U.S.C. § 112, second
paragraph.
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