Appeal No. 2006-0010 Page 7
Application No. 10/170,538
metal melt products. The Appellants have failed to specify the structural characteristic
of the claimed foam product. The Appellants instead rely on the description of the
product as obtainable from the device described in claim 21.4 Appellants argue that the
cited references disclose metal melts that have a variety of large and small pore sizes.
The claimed invention does not specify the conditions of operation of the device such
that only one type of product is produced. A person of ordinary skill in the art would
have recognized that several parameters, including gas flow, could have an effect on
the resulting product. (Note the cited references). Appellants also acknowledge that
the flow rate has an effect on the resulting product. (Specification, p. 5). The operation
of the device described by claim 21 wherein the flow rate of the gas is varied would
produce a product that has a variety of pore sizes. Appellants assert that the foam of
the cited prior art has a variety of pore sizes. Appellants have not directed us to
evidence that indicates that the foamed metal melt products of the cited references are
not capable of being obtained, i.e., obtainable, by operation of the device of claim 21
utilizing varied inflow parameters of the gas. The rejection of claims 64 and 66 is thus
affirmed.
Claims 65 and 67 require the foamed metal melt to have gas bubbles wherein
the diameter of a largest bubble is less than 2.5 times a diameter of a smallest bubble.
4 It is a well known proposition that process steps in a product claim are limiting to the extent they further
define the structure of the product. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 965-966 (Fed. Cir.
1985).
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