Appeal No. 97-1974
Application 08/286,696
appellants argue that the lower saucer holder disclosed by
Shepherd does not include, as recited, "a slanting surface"
for gripping the edges of the saucer. The examiner identifies
Shepherd's "slanting surface" as Shepherd's surface 34, but,
as shown in Figs. 4 and 5, this surface does not engage the
saucer 7, but rather the saucer is held between lip 38 and the
slanting surfaces at the lower ends of the sides 21 of the
base. The rejection of claim 2 as anticipated by Shepherd
will therefore not be sustained.
The rejection of claims 3 and 5 will also not be
sustained. We have rejected claim 3, supra, and have
sustained the rejection of claim 5, on the ground that they
fail to comply with the second paragraph of § 112, because
their scope is not clearly defined. Under these
circumstances, claims 3 and 5 should not be rejected as
unpatentable over prior art. See In re Steele, 305 F.2d 859,
862, 134 USPQ 292, 295 (CCPA 1962). We note however, that our
reversal of the rejection under § 102(e) is pro forma only,
and should not be taken as a holding that if the
indefiniteness rejections were overcome, claims 3 and 5 would
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