Appeal No. 2003-1583
Application 09/253,235
The appellants argue that JP ‘345 fails to disclose that the
stirrer mixes the dendrites in three dimensions as required by
claims 39 and 41 (brief, page 19). A stirrer having a polygonal
or cylindrical shape, the appellants argue, is not conducive to
stirring in three dimensions. See id. JP ‘345 does not describe
the periphery of the stirrer. However, the teaching that the
fine spherical crystal grains uniformly coexist in the molten
metal (page 6) indicates that there is sufficient three
dimensional mixing for this uniformity to be obtained. Moreover,
the examiner finds that a stirring method cannot produce a flow
pattern which is not three dimensional to some extent (answer,
page 7). Because the appellants do not challenge this finding,
we accept it as fact. See In re Kunzmann, 326 F.2d 424, 425 n.3,
140 USPQ 235, 236 n.3 (CCPA 1964). The appellants argue that the
specification defines three dimensional mixing inferentially
(reply brief, pages 5-7). The relied-upon disclosures in the
specification describe the two-rotor embodiment shown in
figure 1. The appellants are reading this embodiment into
claims 39 and 41, which is improper. See In re Prater, 415 F.2d
1393, 1405, 162 USPQ 541, 551 (CCPA 1969).
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