Appeal No. 2004-0906
Application No. 09/571,896
For the foregoing reasons, we determine that the examiner has
prima facie established that the claims on appeal are indefinite,
and appellants’ arguments have not sufficiently rebutted the
examiner’s conclusion. We therefore conclude that appellants
have failed to meet the requirements of the second paragraph of
35 U.S.C. § 112 and affirm the examiner’s rejection.
B. The Rejections under 35 U.S.C. § 102(b)
Although we have concluded as a matter of law that the claims
are indefinite, we analyze and review the rejections on appeal
which are based on prior art since the indefinite phrase
“substantially parallel planar” does not affect our review. Our
review does not involve any speculations and assumptions regarding
this phrase, as discussed below. Compare In re Steele, 305 F.2d
859, 862-63, 134 USPQ 292, 295-96 (CCPA 1962).
We adopt the examiner’s findings of fact from Bumgarner
(Answer, page 3). Appellants note that the outcome of this issue
(the rejection under section 102(b) over Bumgarner) appears to
depend on the outcome of the issue under section 112, second
paragraph (Reply Brief, page 2). Appellants’ sole argument
regarding this rejection over Bumgarner is that the silo of this
reference has a substantially cylindrical wall, which does not
“substantially define a plane.” Brief, page 7. This argument
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