Appeal No. 97-1079
Application 08/562,471
We REVERSE and, pursuant to our authority under the
provisions of 37 CFR § 1.196(b), enter a new rejection of the
appealed claims under 35 U.S.C. § 112, second paragraph.
The appellant’s invention pertains to a ladder safety
attachment. Independent claim 1 is further illustrative of the
appealed subject matter and a copy thereof may be found in the
appendix to the appellant’s brief.
The references relied on by the examiner are:
Lamp 467,468 Jan. 19, 1892
Schwarting 619,235 Feb. 07, 1899
Kummerlin 4,359,138 Nov. 16, 1982
Claims 1, 2, 4, 5, 7 and 8 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Kummerlin in view of either Lamp
or Schwarting. Normally claims which fail to comply with the
second paragraph of § 112 will not be analyzed as to whether they
are patentable over the prior art since to do so would of
necessity require speculation with regard to the metes and bounds
of the claimed subject matter. See In re Steele, 305 F.2d 859,
862-63, 134 USPQ 292, 295-96 (CCPA 1962) and In re Wilson, 424
F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970). Nevertheless, in
this instance, we are able to reach the question of patentability
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