Appeal No. 97-0677
Application No. 08/312,710
As set forth previously, our review of the specification
leads us to conclude that one of ordinary skill in the art
would not be able to understand the metes and bounds of the
terminology "in close proximity" in claim 1.
Examiner's rejection of claim 1 under 35 U.S.C. § 103
We emphasize again here that claim 1 contains unclear
language which renders the subject matter thereof indefinite
for the reasons stated supra as part of our new rejection under
35 U.S.C. § 112, second paragraph. We find that it is not
possible to apply the prior art to claim 1 in deciding the
question of obviousness under 35 U.S.C. § 103 without resorting
to speculation and conjecture as to the meaning of the
questioned limitation in claim 1. This being the case, we are
therefor constrained to reverse the examiner's rejection of
claim 1 under 35 U.S.C. § 103 in light of the holding in In re
Steele, 305 F.2d 859, 862, 134 USPQ 292, 295 (CCPA 1962). This
reversal of the examiner's rejection is based only on the
technical grounds relating to the indefiniteness of this claim.
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