Appeal 2006-3333
Application 10/324,601
depressed such that Bryan does not disclose “using the water gun to write”
in a buoyant or airborne field of luminescent particles (Br. 15, 16-17, 18).
Regarding Appellant’s arguments concerning feature (1), the
Examiner responds that Bryan’s Figure 1 to Figure 3 embodiment discloses
a toy water gun that discharges a mixture of powder particles and water into
the air, wherein luminescence begins as the mixture contacts the air upon
expulsion from the toy gun (Answer 7).
Regarding Appellant’s arguments concerning feature (2), the
Examiner further contends that Bryan discloses that his Figure 1
embodiment has two chambers, one of which holds an activator for the
luminescent particles (Answer 8).
Regarding Appellant’s arguments concerning feature (3), the
Examiner contends that Bryan’s Figure 1 embodiment (i.e., toy water gun) is
“a handheld device which is the exact definition of a ‘wand’” (Answer 9).
We agree with the Examiner’s ultimate finding that claims 1, 18, 29,
and 40 are anticipated by Bryan.
Appellant’s arguments are directed to the function, rather than the
structure, of Bryan’s bioluminescent device. For example, regarding the
“particle generator” feature, Appellant argues that Bryan does not disclose
“any means for creating a buoyant field of luminescent particles” (emphasis
added) (Br. 13, 15, 17, 21). Such an argument goes to the purpose or
function of the structure, rather than to the structure itself. Similar
functional arguments were made regarding the “source of activating agent”
(Br. 14, 16, 18, 21) and “wand” (Br. 15, 16-17, 18) in the apparatus claims.
However, the absence of disclosure in the prior art relating to function in an
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