Appeal No. 2004-1481
Application No. 09/726,659
art. See In re Buchner, 929 F.2d 660, 661, 18 USPQ2d 1331, 1332
(Fed. Cir. 1991). From the teachings of Neoh, backing plates were
well known in this art. Finally, as noted by the examiner (Answer,
page 4), original Figures 1-3 are schematic drawings and are silent
as to whether a backing plate is included or excluded.
For the foregoing reasons and those stated in the Answer, we
determine that appellant has not conveyed with reasonable clarity
to those skilled in this art that, as of the date of this
invention, appellant was in possession of the invention as now
claimed. Accordingly, we affirm the examiner’s rejection of claims
10, 13, 14, 17 and 18 under 35 U.S.C. § 112, ¶1, for failure to
fulfill the “written description” requirement.
B. The Rejection under § 102(b)
The examiner finds that Neoh discloses a system capable of
delivering SOG comprising a tube capable of delivering SOG
connected to a tool capable of using SOG and a capacitive sensor
mounted on the tube that is capable of detecting bubbles in the SOG
flowing through said tube (Answer, page 4, italics added). The
examiner’s position is that the recitation of the intended use of
the claimed invention does not result in a structural difference
between the claimed invention and the prior art (Neoh)(Answer, page
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