Appeal No. 96-4137
Application 08/260,674
because Quinton discloses that said lumbar support promotes
comfort and avoids or alleviates backache.
We have sustained the examiner’s rejection of claim
22 under 35 U.S.C. § 112, second paragraph, because in our
view it is uncertain what is meant by the term “average.”
While we might speculate as to what is meant by the claim
language, uncertainty does not provide a proper basis for
making the comparison between that which is claimed and the
prior art, as we are obligated to do. Rejections under on 35
U.S.C. § 103 should not be based upon “considerable
speculation as to the meaning of the terms employed and
assumptions as to the scope of the claims.” In re Steele, 305
F.2d 859, 862, 134 USPQ 292, 295 (CCPA 1962). When no
reasonably definite meaning can be ascribed to certain terms
in a claim, the subject matter does not become obvious, but
rather the claim becomes indefinite. In re Wilson, 424 F.2d
1382, 1385, 165 USPQ 494, 496 (CCPA 1970). Accordingly, we
are constrained to reverse the examiner’s rejection of claim
22 under 35 U.S.C. § 103. We hasten to add that this reversal
is not based upon any evaluation of the merits thereof and
does not preclude the examiner’s advancement of a rejection
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