Appeal No. 2003-0778 Page 5
Application No. 09/564,131
We recognize the inconsistency implicit in our decision to sustain the rejection of
claims 1-13 under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to
particularly point out and distinctly claim the invention with a determination that these
claims are anticipated under 35 U.S.C. § 102. Normally, when substantial confusion
exists as to the interpretation of a claim and no reasonably definite meaning can be
ascribed to the terms in a claim, a determination as to anticipation under 35 U.S.C.
§ 102 is not made. See In re Steele, 305 F.2d 859, 862, 134 USPQ 292, 295 (CCPA
1962) and In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970).
However, in this instance, we consider it to be desirable to avoid the inefficiency of
piecemeal appellate review. See Ex parte Ionescu, 222 USPQ 537, 540 (Bd. App.
1984). For the reasons outlined below, we interpret appellant’s claim 1 as requiring a
barbecue grill accessory comprising a divider in the form of a loop, the divider being
dimensioned to be received inside the heat chamber of the charcoal barbecue grill and
to divide an interior volume of the heat chamber into an inner volume within the loop
and an outer volume outside the loop, the divider being capable of retaining charcoal
outside the inner volume and outside the loop to control burning of the charcoal around
the loop when the divider is received inside the heat chamber and charcoal is
positioned in the heat chamber around the divider and burned.
Appellant (brief, pages 9-10) urges that the “means for ...” limitation of claim 1
should be interpreted as a recitation under the sixth paragraph of 35 U.S.C. § 112. We
note, however, that the sixth paragraph of 35 U.S.C. § 112 states:
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