Appeal No. 1997-0659
Application No. 08/318,462
static soil medium to achieve pollutant removal.
Both the question of what a prior art reference teaches
and the question of anticipation under section 102(b) of the
statute are factual determinations. See In re Graves, 69 F.3d
1147, 1151, 3 USPQ2d 1697, 1700 (Fed. Cir. 1995). Here, the
examiner’s factual determination of what the Gannon Abstract
and Gannon complete reference teaches is erroneous. It
logically follows under the circumstances of this case, that
the examiner’s rejection of appealed claims 1, 2, 6, 8, 9, and
11 through 14 as anticipated by the Gannon Abstract cannot be
sustained. Moreover, since none of the “secondary references”
relied upon by the examiner in his stated 35 U.S.C. § 103
rejections of the remaining claims on appeal remedy the basic
deficiencies regarding the teachings in the Gannon Abstract,
these rejections similarly cannot be sustained.
The decision of the examiner is reversed.
REVERSED
John D. Smith )
Administrative Patent Judge )
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