Appeal No. 96-0425 Page 11
Application No. 08/108,986
and said second conveyor means" as recited in claim 1. In
that regard, we agree with the appellants position that
Hognestad only teaches that the steps of removing the last
product from a stack and supplying a new stack of products be
performed sequentially. We have reviewed the entire
disclosure of Hognestad and find no suggestion therein of the
claimed simultaneous movement. Accordingly, we must conclude
that the examiner has resorted to speculation, unfounded
assumption or hindsight reconstruction to supply the
deficiencies in the factual basis for the rejection.
Furthermore, even if the position of the examiner was
correct, the modified device of Hognestad would not have any
structure corresponding to the claimed "means for moving." As
explained in In re Donaldson, 16 F.3d 1189, 1193, 29 USPQ2d
1845, 1848-49 (Fed. Cir. 1994), the PTO is not exempt from
following the statutory mandate of 35 U.S.C. § 112, paragraph
6, which reads:
An element in a claim for a combination may be expressed
as a means or step for performing a specified function
without the recital of structure, material, or acts in
support thereof, and such claim shall be construed to
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