Appeal No. 2005-2687
Application 10/322,194
We have throughly reviewed the respective positions
advanced by appellant and the examiner. In so doing, we will
sustain the examiner’s rejection of claims 9-11, 21 and 22, but
reverse the examiner’s rejection of claims 12-15. Our
reasoning follows.
We consider first the examiner’s section 102 rejection of
claims 21 and 22. Claim 21 on appeal simply calls for a piece
of cut metal having cooled slag semi-adhered to the metal base.
There is no dispute that each of Bissonnette, Babcock and Jones
describes cut metal work pieces having slag adhered thereto.
It is appellant’s contention that the slag described in the
references is not semi-adhered to the metal base. However, as
pointed out by the examiner, the present specification fails to
define the claim term “semi-adhering” in any way that serves to
distinguish the piece of cut metal from the pieces described in
the applied references. While appellant maintains that “the
apparatus is described in the cited and applied references are
incapable of forming a cooled slag semi-adhering to a metal
base” (page 10 of principal brief, fourth paragraph), and
relies on the Sykes declaration in support of the argument,
appellant has not established on the present record actual
differences between how the slag is adhered to the cut metal
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