Appeal No. 94-4150
Application 07/911,354
factual basis rather than conjecture, speculation or assumptions
(In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967), it is clear to us that we cannot sustain the examiner’s
§ 103 rejections of claims 2-11 and 17-20 over Haney or Margel or
of claims 2-9, 11 and 17-21 over Smith.
THE REJECTION BASED ON MITCHELL
With the respect to this rejection, the appellant argues
that ?materials which swell like [Mitchell’s] tea are not
embraced within either the original or present scope of the
claims, which recite ?granular materials?? (Supplemental Brief,
page 7). However, independent claim 17 contains no recitation
which would exclude materials which swell from the claim phrase
?granular solid material?. Moreover, the appellant points to
nothing in his specification disclosure, and we find nothing
independently, which requires the claim 17 phrase ?granular solid
material? to be interpreted as excluding materials which swell.
We therefore share the examiner’s determination that the
independent claim under review encompasses, rather than excludes
as argued by the appellant, granular materials such as the tea of
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