that the signal to be recorded interferes with the frequency
band of EFM signal (196-720 kHz), and therefore it is
impossible to record digital signal in the second area”
[specification, pages 5-6]. The examiner cannot accept this
prior art for use in a rejection and assert at the same time
that the prior art has properties different from the very
properties described in the prior art. The admitted prior art
describes an interference which is contrary to the recitations
of independent claims 1 and 5, and the examiner cannot apply
such admitted prior art under 35 U.S.C. § 102 in a manner
inconsistent with its own disclosure.
Since the admitted prior art does not anticipate the
invention of independent claims 1 and 5, such art does not
anticipate the invention as recited in any of the claims on
appeal. Therefore, the decision of the examiner rejecting
claims 1-8 under 35 U.S.C. § 102 is reversed.
REVERSED
6
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