Appeal No. 2003-0485
Application 08/767,249
72) differ considerably in size, i.e, with section (72) being
much larger in area than section (70). Thus, when the surface
areas of sections (70) and (80) are added together and the
surface areas of sections (72) and (78) are added together, it is
clear that (70, 80) has a smaller surface area than (72, 78).
As for the requirement in claim 18 that the upper section
have a surface area equal to that of the two subsequent sections,
we agree with appellant that it is rank speculation on the
examiner’s part to conclude that upper section (80) of Fabel has
a surface area equal to that of sections (70, 72). Given the
sizing of these portions of the mailing form (10) of Fabel as
seen in Figures 1, 5 and 6 of the patent, it is highly unlikely
that such a relationship exists.
In light of the foregoing, it is clear to us that the
examiner’s assertions (findings) in the last paragraph on page 4
of the answer are entirely without foundation and contrary to the
teachings of Fabel. Accordingly, we will not sustain the
examiner’s rejection of claims 18 and 26 under 35 U.S.C. § 102(e)
as being anticipated by Fabel.
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