Appeal No. 97-3469
Application 08/188,427
there is no factual basis for an anticipation or obviousness
rejection.
The examiner states (EA7):
Since prior art discs are numerous and have various
sizes, skew angle ranges may be small or large. From
this and the fact that Mowry shows the read gap within
the shadow of the write means (FIG. 4), it is considered
that at least a small skew angle range would keep the
reading means of Mowry within the shadow of the writing
means, i.e., "at all positions between the inner and
outer radial positions over the rotating recording
medium", as set forth in the claims.
Appellants argue that the examiner is merely guessing that one
of the large number of available disc drives "must have a skew
angle range that keeps the reading means within the shadow of
the writing means at all positions" (RBr2). We agree with
appellants that the examiner's position is just speculation,
which cannot take the place of evidence.
The examiner states that the claims read on a
hypothetical medium having only one track and Mowry is
considered to include such a medium (SEA2). Appellants have
responded (SRBr1-2), the examiner has answered (2dSEA1-2),
appellants have countered (2dSRBr1-3), and the examiner has
responded (3dSEA1-2). We have considered the examiner's
arguments, but find them unpersuasive. Claims 1, 6, and 11
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