Appeal No. 1997-4188
Application No. 08/373,528
of 37 CFR § 1.196(b) is introduced, infra, based in part upon the
above noted indefiniteness of the claimed subject matter. It
follows that, with the claims being indefinite as indicated, it
would entail considerable and inappropriate speculation on our
part to try to comprehend the metes and bounds of the claimed
subject matter. Since a rejection under 35 U.S.C. § 103 cannot
be based on speculation and assumptions, In re Steele, 305 F.2d
859, 862-63, 134 USPQ 292, 295 (CCPA 1962), we are constrained to
procedurally reverse the examiner’s rejection under 35 U.S.C.
§ 103. We take no position as to the applicability of the
applied prior art to the claims on appeal since this prior art
cannot be fairly assessed until it can be determined what in fact
is being claimed.3
Under the provisions of 37 CFR § 1.196(b), we make the
following new rejection.
3 We would only add the following commentary. Figure 5 of
Japan ‘289 clearly reveals a pump support base 7 for a fuel pump
8 closing off a vertically extending opening in fuel tank 3. As
to the Japan ‘676, Weaver, and Fedelem references, collectively
they appear to corroborate what was known in the art when the
present invention was made, as set forth in the “BACKGROUND OF
THE INVENTION” section of appellants’ specification (pages 1
through 3).
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