Appeal No. 2002-0514
Application No. 08/886,388 Page 8
Consequently, we sustain the examiner’s 35 U.S.C. § 112,
second paragraph rejection.
Since interpreting the appealed claims would require us to
engage in speculation as to the meaning of terms and assumptions
as to the scope of the claim, we cannot properly determine
whether the claimed invention encompassed by the claims on appeal
is in fact unpatentable over the other grounds of rejection
advanced by the examiner. Consequently, we are constrained to
reverse, pro forma, the examiner's rejection of the appealed
claims under 35 U.S.C. § 112, first paragraph as non-enabled and
as unpatentable under 35 U.S.C. § 103. We hasten to add that
this is a procedural reversal rather than one based upon the
merits of those rejections.
CONCLUSION
The decision of the examiner to reject claims 44, 45, 51-54,
56, 58-60, 62 and 66-68 under 35 U.S.C. § 112, second paragraph
as being indefinite for failing to particularly point out and
distinctly claim the subject matter which applicant regards as
invention is affirmed. The decision of the examiner to reject
the appealed claims under 35 U.S.C. § 112, first paragraph and to
reject the appealed claims under 35 U.S.C. § 103 as being
unpatentable over Lee in view of Wolf and Morihara is reversed.
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