Appeal No. 1996-3903 Page 8
Application No. 08/305,225
or suggested in Fickenwirth. Therefore, Fickenwirth does not disclose or fairly suggest the
first alternative limitation in claim 50. Furthermore, we find that Fickenwirth does not teach
or fairly suggest the second alternative limitation in claim 50 directed to the “planar
configuration stretched in plane isotropically in tension throughout said membrane before
being attached.” Therefore, we will not sustain the rejection of claims 43-52 under 35
U.S.C. § 103.
DOUBLE PATENTING
With respect to claims 33-42, in comparing the claimed subject matter with the
claims of the prior patent, it is apparent to us that considerable speculations and
assumptions are necessary in order to determine what in fact is being claimed. Since a
rejection based on a comparison of appellants' claims with the claims of a prior patent
cannot be based on speculations and assumptions, as discussed above, we are
constrained to reverse, pro forma, the examiner's rejections of claims 33-42 through
under obvious-type double patenting. We hasten to add that this is a procedural reversal
rather than one based upon the merits.
With respect to claims 43 and 50, appellants argue that the instant claims would not
be obvious in view of the claims of U.S. Patent 5,416,657. We agree with appellants that
the swirl pattern is not an obvious variation of the instant claimed invention. Furthermore,
the pre-stretched limitation of claim 43 as discussed above is further not included or
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