Appeal No. 2003-0778 Page 4
Application No. 09/564,131
on to recite “the divider having means for retaining charcoal ... to control burning ...
when the divider is received inside the heat chamber and charcoal is positioned in the
heat chamber around the divider and burned.” The use of the terminology “the divider
having means” implies that the divider in the form of a loop has some particular
structure thereon or a part thereof which performs the function of retaining charcoal
outside the inner volume of the heat chamber. This recitation, however, is inconsistent
with appellant’s underlying disclosure, which indicates, on page 3 of the specification,
that
[t]he present invention provides a divider in the form of a
loop that is positioned in the heat chamber of the
conventional barbecue grill to support charcoal in a piled
ridge around the divider. The loop controls the charcoal
briquets so that they burn slowly in a path along the outer
periphery of the loop divider.
As disclosed by appellant in the specification, the structure which performs the function
of retaining the charcoal outside the inner volume to control burning as recited in claim
1 is the entirety of the loop divider itself, not some structure thereon or part thereof. As
such, we agree with the examiner that there is an inconsistency between the language
of claim 1, and hence claims 2-13 which depend therefrom and thus incorporate this
inconsistency, and appellant’s underlying disclosure, thereby rendering the claims
indefinite under the second paragraph of 35 U.S.C. § 112. See In re Cohn, 438 F.2d
989, 993, 169 USPQ 95, 98 (CCPA 1971). It thus follows that we shall sustain the
examiner’s rejection of claims 1-13 under the second paragraph of 35 U.S.C. § 112.
The anticipation rejections
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