Appeal No. 95-2175
Application 08/100,332
Hoek discloses a wave guide cable with alternating portions of
waterblocking and non-waterblocking materials.
Saito discloses a light waveguide cable with an outer
jacket 10, and an inner core 2 with grooves 4 therein.
Waveguides 5 are placed in grooves 4. As shown in Figure 3,
waterblocking material 6 is placed in grooves 4 and on waveguides
5 at spaced intervals. Therefore, Saito teaches a waveguide
cable with alternate waterblocking and non-waterblocking
portions.
Furthermore, appellant admits that the prior art
teaches cables that are waterblocked at periodic intervals.
Brief at page 4. In view of these references and appellant’s
statement in the Brief, it is our view that the evidence
establishes that van der Hoek and Saito anticipate appellant’s
claim 1. We further note that the predecessor of our reviewing
court sanctioned the practice of nominally basing a rejection on
§ 103 when, in fact, the actual ground of rejection was that the
claims were anticipated by the prior art. The justification for
this is that lack of novelty in the claimed subject matter, e.g.,
as evidenced by a complete disclosure in the prior art, is the
ultimate or epitome of obviousness. In re Fracalossi, 681 F.2d
-5-
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