Appeal No. 94-4150
Application 07/911,354
the here claimed subject matter notwithstanding the presence of
this term. In this latter regard, we emphasize the appellant’s
point that Figure 1 of his drawing shows a container shape which
is plainly not an exact tetrahedron in view of the seam disposed
on the right side of the figure and therefore is properly and
accurately characterized as ?substantially? constituting a
tetrahedron in accordance with the appealed claims.
For the reasons set forth above and in the appellant’s
Supplemental Brief, we cannot sustain the examiner’s § 112, first
and second paragraphs, rejection of claims 2-11, 17-21, 23, 24,
26 and 27.
THE SECTION 103 REJECTION BASED ON
HANEY, MARGEL or SMITH
On pages 5 and 6 of his Supplemental Answer, the examiner
acknowledges that the references under consideration do not
disclose a container for solid materials in the shape of the
tetrahedron but argues that one of ordinary skill in the art
would have used any shape container. However, the examiner has
proffered no evidence whatsoever in support of his argued
position. We are constrained, therefore, to regard this position
as founded upon conjecture, speculation or assumptions on the
examiner’s part. Since a rejection based on § 103 must rest on a
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