Appeal No. 1999-1972 Page 6
Application No. 08/807,780
In our view, the metes and bounds of claim 11 would be
understood with a reasonable degree of precision and
particularity by those skilled in the art. In that regard, we
agree with the appellants (supplemental response, p. 4) that
claim 11 recites two noise makers. One noise maker being the
bendable and stretchable material of the main housing which
makes a noise itself during bending and stretching of the
material as set forth in parent claim 1. The second noise
maker being a separate noise maker secured in the main housing
which makes a noise due to flexing or stretching of the
housing as recited in claim 11. We see no basis for the
examiner's determination that this second, separate noise
maker, contradicts claim 1. 3
For the reasons set forth above, the decision of the
examiner to reject claim 11 under 35 U.S.C. § 112, second
paragraph, is reversed.
3The issue of whether the claimed two noise maker
embodiment complies with the written description requirement
of the first paragraph of 35 U.S.C. § 112 is not before us in
this appeal. In any event, the appellants have argued that
original claims 1 and 11 provide the required written
description support for claim 11 under appeal.
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