Appeal No. 95-3055
Application No. 08/111,765
The examiner has accorded the Luryi affidavit little, if
any, weight, contending that the statements therein are “[p]urely
conclusory…without any factual basis therefor” [answer-page 5].
We find the examiner’s action in this regard to have been
improper. The affidavit establishes Dr. Luryi as an expert in
this field, and this is not gainsaid by the examiner. It is not
understood how a statement by an expert as to what skilled
artisans would have interpreted a term of art to mean is
“[p]urely conclusory.” The “factual basis” for the conclusion as
to what a particular term means is clearly the expert’s
experience and education in the field.
The examiner also states that “Luryi admitted that the
examiner’s rejection was correct” [answer-page 6]. However, we
have carefully reviewed the affidavit and find no such admission.
We find no adequate basis for sustaining the examiner’s
rejection of claims 2 through 12 under 35 U.S.C. ' 112, second
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