Appeal No. 1999-1460
Application No. 08/070,859
appellants themselves, this figure is not a part of the prior
art. For these reasons, the figure cannot be relied upon to
establish enablement or definiteness pursuant to the first and
second paragraphs of Section 112.
In summary, for the reasons set forth above and in the
answer, the examiner has carried her burden of establishing
reasons for doubting enablement with respect to the claim phrase
“regular aggregate structure” whereas the appellants have failed
to present suitable arguments and proofs to show the contrary.
In re Marzocchi, 439 F.2d 220, 223-24, 169 USPQ 367, 369-70 (CCPA
1971). Analogous reasoning applies to the examiner’s
determination of claim indefiniteness and the appellants’
response thereto. It follows that we will sustain the examiner’s
rejections of all claims on appeal under both the first and
second paragraphs of 35 U.S.C. § 112.
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