Appeal No. 2004-0534 Page 2
Application No. 10/010,337
BACKGROUND
The appellant’s invention relates to a hydrotherapy tub coplanar flow device
designed to discharge air and water in a substantially coplanar flow on the inner surface
of a hydrotherapy tub and a hydrotherapy tub provided with such a flow device. A copy
of the claims under appeal is set forth in the appendix to the appellant’s brief.
The examiner relied upon the following prior art references in rejecting the
appealed claims:
Gardenier 4,953,240 Sep. 4, 1990
Mersmann 5,063,620 Nov. 12, 1991
The following rejections are before us for review.2
Claims 11, 12 and 14-20 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Gardenier.
Claims 11, 12 and 14-20 stand alternately rejected under 35 U.S.C. § 103 as
being unpatentable over Gardenier in view of Mersmann.
2 The objections to the specification under 37 CFR § 1.75(d) as failing to provide proper
antecedent basis for language in claims 11, 16 and 20 are not rejections under 35 U.S.C. § 112, first
paragraph, as appellant’s brief alleges on pages 5 and 6 of the brief. While compliance with the written
description requirement of 35 U.S.C. § 112, first paragraph, does not require literal support in the
specification for the claim language (see In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed.
Cir. 1983)), 37 CFR § 1.75(d) does provide that “the terms and phrases used in the claims must find clear
support or antecedent basis in the description so that the meaning of the terms in the claims may be
ascertainable by reference to the description.” This requirement of 37 CFR § 1.75(d) is separate and
distinct from the written description requirement of 35 U.S.C. § 112 and objections for failure to comply
therewith are issues which are not within the jurisdiction of the Board, being reviewable by petition under
37 CFR § 1.181. In re Mindick, 371 F.2d 892, 894, 152 USPQ 566, 568 (CCPA 1967).
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