Appeal No. 98-2783
Application 08/450,009
through 10 which depend therefrom are also indefinite, given their
dependency from claim 1.
With regard to claim 28, appellants have not disputed the
examiner’s position, but have merely given the examiner “the
authority to amend and/or enter the amendment made to claim 28 in
applicants’ response of August 22, 1996 in order to more particularly
point out and distinctly claim applicants’ invention” (brief, page
5). Thus, since appellants have not taken issue with the examiner’s
position regarding claim 28, the rejection of that claim under 35
U.S.C. § 112, second paragraph, is summarily sustained.
We next look to the examiner's rejection of claims 1, 2, 6
and 9 under 35 U.S.C. § 102(b) as being anticipated by Hillstead.
Given our determinations above concerning the indeterminate scope and
content of claims 1, 2, 6 and 9 on appeal under 35 U.S.C. § 112,
second paragraph, we find that it is not possible to apply the prior
art relied upon by the examiner to these claims in deciding the
question of anticipation under 35 U.S.C. § 102(b) without
resorting to considerable speculation and conjecture as to the exact
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