Appeal No. 2004-1302
Application No. 09/789,757
of the tray is not clear, it is apparent to us for the reasons
explained above that it would not have obvious to modify the
container of Blanco in view of the teachings of Dallmer to
provide an additional opening in the sidewall of the Blanco
container. For this reason, we also shall not sustain the
rejection of claim 28 as being unpatentable over Blanco in view
of Wynalda and Dallmer, it being noted that this is a reversal on
the merits and not merely a procedural reversal.
New Grounds of Rejection
Pursuant to 37 CFR § 41.50(b), we enter the following new
rejection.
Claims 9, 15, 20 and 26-32, 34-37, 39, 40, 43-50 and 64 are
rejected under 35 U.S.C. § 112, second paragraph, for failing to
particularly point out and distinctly claim the subject matter
which appellant regards as the invention.
The test for compliance with the second paragraph of Section
112 is “whether the claim language, when read by a person of
ordinary skill in the art in light of the specification,
describes the subject matter with sufficient precision that the
bounds of the claimed subject matter are distinct.” In re Merat,
519 F.2d 1390, 1396, 186 USPQ 471, 476 (CCPA 1975). In other
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