Appeal 2006-2690
Application 10/101,242
scope of the claims, especially when read in light of the definitions disclosed
in Appellants’ Specification. The Examiner admits that “[s]everal examples
of repeating patterns were mentioned in the specification” but apparently the
Examiner is concerned with non-repeating patterns (Answer 3). However,
this type of pattern is clearly disclosed at page 18, paragraph [0046], of the
Specification. The Examiner has not established, on this record, why one of
ordinary skill in the art would not be apprised of the scope of this term.
For the foregoing reasons and those stated in the Brief, we determine
that the Examiner has not met the initial burden of establishing that the
claimed language is indefinite. Therefore we cannot sustain the rejection of
claims 34-50 and 52-54 under § 112, second paragraph.
B. The Rejection under § 102(b) over Long
The Examiner finds that Long discloses glass articles having
multicellular glass fused to one surface of a ribbon of float glass (Final
Office action 3-4). The Examiner recognizes that the claims are drafted in a
product-by-process format, and finds that the structural features taught by
Long appear to be identical to those claimed, where the “particles arranged
in a pattern” reads on the random or non-repeating pattern disclosed by Long
(id. at 4).
Appellants’ first argument is that Long is not “prior art” to the
pending claims, i.e., Long is non-analogous art (Br. 5). Appellants’ second
argument is that, unlike the product of Long, the product of the present
invention as set forth in claim 34 is an article having a surface comprising at
least some particles incorporated into a float glass ribbon, thus resulting in a
textured or irregular surface (id.). Appellants’ third argument is directed to
the subject matter of claim 50, and submits that Long does not explicitly
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