Appeal No. 2004-1890 3
Application No. 09/225,974
Claims 1, 11, and 18 stand finally rejected under 35 U.S.C. § 112, second
paragraph, as failing to particularly point out and distinctly claim the invention.1 Claims
58-62 stand finally rejected under 35 U.S.C. § 102(e) as being anticipated by Carey.
Claims 1-3, 5-18, 63-75, 79-86 and 95-97 stand finally rejected under 35 U.S.C. § 103(a)
as being unpatentable over Carey in view of Suver. In a separate rejection under
35 U.S.C. § 103(a), claims 95-97 stand finally rejected as being unpatentable over Carey
alone.
Rather than reiterate the arguments of Appellant and the Examiner, reference is
made to the Briefs2 and Answer for the respective details.
OPINION
We have carefully considered the subject matter on appeal, the rejections advanced
by the Examiner, the arguments in support of the rejections and the evidence of
anticipation and obviousness relied upon by the Examiner as support for the prior art
rejections. We have, likewise, reviewed and taken into consideration, in reaching our
1 Although the Examiner has characterized the stated position with regard to the language of
claims 1, 11, and 18 as an “objection,” we agree with Appellant (Brief, pages 9, 12, and 13; Reply Brief,
page 4) that the Examiner’s position is properly characterized as a “rejection.” The Examiner’s comments
(Answer, page 15) regarding an alleged “lack of antecedent basis” in the language of claims 1, 11, and 18
verifies that the asserted inadequacies of the claim language are a matter of substance, not mere
formalities. The alleged indefiniteness of claim language is properly characterized as a “rejection” which is
reviewable by the Board. See MPEP § 706.01.
2 The Appeal Brief was filed August 18, 2003 (Paper No. 28). In response to the Examiner’s
Answer dated October 16, 2003 (Paper No. 29), a Reply Brief (corrected) was filed December 23, 2003
(Paper No. 31), which was acknowledged and entered by the Examiner as indicated in the communication
dated April 1, 2004 (Paper No. 33).
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