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Ex Parte Kircher et al - Page 8Legal Research Home > Board of Patent Appeals and Interferences > 2004 > Ex Parte Kircher et al - Page 8
Appeal No. 2004-2032
Application No. 09/729,498
legal principle that anticipation cannot be predicated on
conjecture. W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d at
1554, 220 USPQ at 314. Stated otherwise, under § 102, a reference
must clearly and unequivocally disclose the claimed invention or
direct those skilled in the art thereto. In re Arkley, 455 F.2d
586, 587, 172 USPQ 524, 526 (CCPA 1972). Here, no portion
including column 6 of the Lewis patent clearly and unequivocally
discloses the compatibility determining function and step claimed
by the Appellants. Finally, it appears the Examiner erroneously
considers the programmed control means of Lewis to perform this
claimed determining function and step.
In view of these aforenoted errors by the Examiner, we cannot
sustain his § 102 rejection of claims 1-4, 10 and 24-27 as being
anticipated by Lewis. As for the § 103 rejection, the additional
reference to Baxter, as applied and relied upon by the Examiner,
does not supply the deficiencies of Lewis. It follows that we also
cannot sustain the § 103 rejection of claims 5, 9, 11, 14-18, 22,
30 and 31 as being unpatentable over Lewis in view of Baxter.
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