Appeal No. 2006-0010 Page 6
Application No. 10/170,538
Applying these principles, we note that appealed claim 64 recites: a foamed
metal melt obtainable by the process of claim 37. We interpret the “obtainable”
language to mean capable of being obtained.
The Examiner asserts that the Kenny, Jin >324 and Jin >358 references all
disclose foamed metal melt products with closed uniform pore sizes. The Examiner
asserts that each of these references disclose all of the property limitations specified in
the claims. The Examiner further asserts that the claims are drafted in a “product-by-
process” format. (Answer, pp. 3-4).
Appellants argue that the Kenny, Jin >324 and Jin >358 references each disclose
conventional means for blowing gas into a metal melt and do not specify the
characteristics of the device of claim 21 such as the design of the gas outlet opening.
(Brief, pp. 14,19-20, and 25-26). Appellants also argue that the device of claim 21
promotes the formation of bubbles with a narrow size distribution and that the
references disclose metal melts, having a variety of large and small pore sizes, which
are not the same or likely to be the same as the foamed metal melt produced by the
device of claim 21. (Brief, pp. 14-15, 20-21, and 25-26).
Appellants are free to recite features of a product structurally, functionally or by
describing the production of the product. However, when describing the invention, the
inventor must describe the invention adequately and specifically to avoid the prior art.
In the present case, the Kenny, Jin >324 and Jin >358 references all disclose foamed
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