Appeal No. 2003-0778 Page 3
Application No. 09/564,131
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the answer
(Paper No. 20) for the examiner's complete reasoning in support of the rejections and to
the brief and reply brief (Paper Nos. 19 and 21) for the appellant's arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
The indefiniteness rejection
The basis of the examiner’s rejection of claims 1-13 under the second paragraph
of 35 U.S.C. § 112 is that claim 1, and thus claims 2-13 which depend therefrom, recite
the same structure first by recitation of structure (i.e., “a divider in the form of a loop”)
and second by recitation of means plus function (i.e., “means for retaining charcoal ... to
control burning of the charcoal around the loop form of the divider ...”). According to the
examiner, this double recitation of a single structure creates an inconsistency which
renders the claims indefinite (see answer, pages 4-5).
Claim 1 recites “a divider in the form of a loop, the divider being dimensioned ...
to divide an interior volume of the heat chamber into an inner volume within the loop
form of the divider and an outer volume outside the loop form of the divider” and goes
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