Appeal No. 97-0904
Application 08/105,699
claim, the subject matter of the claim cannot be held to be
anticipated, but rather the claim becomes indefinite. See In re
Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970).
Since it is clear to us that considerable speculation and
assumptions are necessary to determine the metes and bounds of
what is being claimed, and since the rejection under 35 U.S.C.
§ 102 cannot be based upon speculation and assumptions, we are
constrained to reverse the examiner’s rejection of claim 46. See
In re Steele, 305 F.2d 859, 862, 134 USPQ 292, 295 (CCPA 1962).
It should be understood, however, that a reversal of the
rejection under § 102 is not a reversal on the merits of the
rejection, but rather a procedural reversal predicated upon the
indefiniteness of the claimed subject matter.
SUMMARY
The rejection of claim 45 under 35 U.S.C. § 102 has been
sustained, and of claim 46 has been reversed.
A rejection of claim 46 pursuant to 37 CFR 1.196(b) under 35
U.S.C. § 112, second paragraph, has been entered by the Board.
Any request for reconsideration or modification of this
decision by the Board of Patent Appeals and Interferences based
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