Appeal No. 98-0057
Application No. 08/320,016
the pipe to keep the pipe from softening due to heat from the
sun (see column 4, lines 46-52).
Moreover, even if Fouss’s pipe were modified in the
manner proposed by the examiner, the resulting structure would
not arrive at the claimed invention in that Fouss’s pipe is a
corrugated pipe, not a helical pipe as recited in claim 1. The
recitation that the pipe is a helical pipe in the preamble of
claim 1 is not a statement of intended use of the pipe.
Instead, it is a statement of particular pipe construction as
specifically defined on page 3 of appellant’s specification.
For the foregoing reasons, we must reverse the § 103
rejection of claims 1 through 8 and 15.
Under the provisions of 37 CFR 1.196(b), the following
new ground of rejection is entered against claim 15:
Claim 15 is rejected under 35 U.S.C. § 112 ¶ 2 as being
indefinite for failing to particularly point out and
distinctly claim the subject matter which appellant regards as
his invention. This claim is indirectly dependent from claim 1
and therefore encompasses the subject matter of claim 1. It is
therefore indefinite for the reasons stated supra with respect
to claim 1.
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