Appeal No. 98-2812
Application 08/473,054
bonding between the top sheet/cover and the sides of the barrier structure (48). Thus, again we find
that the examiner’s position is based on speculation and conjecture concerning exactly what is taught in
Zehner ‘453. In this instance, it appears just as likely that the top sheet/cover (20) of Zehner ‘453 is
adhered to the sides of the barrier structures therein, as not. Absent an adequate factual basis to
support the examiner’s rejection based on anticipation, we are constrained to reverse. Thus, the
rejection of claim 12 under 35 U.S.C. § 102(e) based on Zehner ‘453, and of claims 13 through 16,
18 and 19 which depend therefrom, will not be sustained.
We must likewise reverse the examiner's rejection of claim 9 under 35 U.S.C. § 103 based on
Zehner ‘453 and Robinson for the same reasons as noted above, since our review of Robinson reveals
nothing which would supply that which we have indicated to be lacking in the disclosure of Zehner
‘453. Similarly, the examiner’s rejection of dependent claims 7 and 17 under 35 U.S.C. § 103 based
on Zehner ‘453 must also be reversed.
In summary:
The examiner's decision rejecting claims 1, 2, 4 and 6 through 19 under the judicially created
doctrine of obviousness-type double patenting is affirmed.
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