Appeal No. 1997-1145 Page 6
Application No. 08/210,229
invention in the specification that the applicator must
affirmatively engage the implant to facilitate handling it
until it is the desired position between two vertebrae (pages
6-8). In the Meyers system there is no affirmative engagement
between the screwdriver and the slot in the screw (or the slot
in the implant, for that matter) and there need not be, because
while there is no precise explanation on this point in the
patent, it would appear that the implant is guided during
insertion at least by the hollow barrel (14) of the plate
member. In addition, the second function of the applicator,
the task of rotating the implant, cannot be accomplished by
engaging the screwdriver with screw 4 and then rotating it. As
we perceive the Meyers invention, this would serve to rotate
only screw 4 with respect to the implant until the implant and
the plate member are locked together, and would not cause the
implant to rotate (column 3, lines 5-8).
It is our opinion that, at the very least, considerable
speculation concerning the operation of the Meyers device is
necessary to support the examiner’s position that claim 1 is
anticipated thereby, and it is axiomatic that a rejection
cannot be based upon speculation. We therefore will not
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