Appeal No. 1996-3626
Application 08/302,155
Mikoshiba et al., considered with Wu et al. .2
OPINION
After a thorough review of the claims before us
considered in light of appellants' disclosure, the prior art
of record in the prosecution history and the respective
positions of both the appellants and the examiner, we conclude
that considerable speculation as to the meaning of the claim
terminology "maintaining the entrant reactant gas at a
substantially uniform temperature" and "constraining the
reactant gas flow at a dividing streamline" and the scope of
the claims was engaged in by both the appellants and the
examiner. Accordingly, we take the unusual step of
summarily reversing the examiner's rejection and entering the
following new ground of rejection, because the rejection was
improperly founded on speculation and assumptions by both the
appellants and the examiner. Compare In re Steele, 305 F.2d
859, 134 USPQ 292 (CCPA 1962).
NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 1.196(b), we
The examiner has stated his rejection as obvious over2
Mikoshiba et al. in view of Wu et al., "and vice-versa." See
page 3 of the Examiner's Answer.
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