Appeal 2007-0255
Application 10/331,878
spacing, probably inserted either to clearly delineate the individual boards 2
or imprecisely inserted to show spacing between the boards prior to
evacuation of the panels. Moreover, Appellant's characterization of the
plastic sheets as being optional, by virtue of the language "[p]referably"
(Specification [0014]) and "can" (Specification [0028]) implies a preferred
embodiment including plastic sheets inserted between each pair of boards
and a non-preferred embodiment without such plastic sheets. Additionally,
Appellant's disclosure that "the boards 2 slide on each other" (Specification
[0028]) (emphasis added) provides support for the boards sliding on or in
contact with one another. Taken as a whole, the portions of Appellant's
disclosure discussed above convey possession of the boards sliding directly
on each other as recited in claim 53, thereby satisfying the written
description requirement of the first paragraph of 35 U.S.C. § 112.
The anticipation and obviousness rejections
Appellant argues that Perkins does not anticipate claim 24 because the
condensable gas, such as purified carbon dioxide, charged into the panel 10
of Perkins to render the panel self-evacuating when subjected to cool
temperatures (Perkins, col. 3, ll. 11-20) is excluded by the "consisting of"
language in claim 24 (Appeal Br. 10). The Examiner's position is, in
essence, that, because Appellant contemplates traces of atmospheric gases
inside the panel (Specification [0006]), the purified carbon dioxide gas
disclosed by Perkins is not excluded by the "consisting of" language
(Answer 20-21).
"'Consisting of' is a term of patent convention meaning that the
claimed invention contains only what is expressly set forth in the claim," but
impurities that a person of ordinary skill in the relevant art would ordinarily
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