Appeal No. 1997-1667
Application No. 08/226,819
independently in this reference which would have suggested
somehow modifying the teachings thereof in such a manner as to
yield products of the type defined by the appealed claims.
Alternatively, we are cognizant of the examiner’s
statement on page 7 of the answer that, “[c]oncerning Baiker
alone, the failure of the reference to explicitly discuss
certain [here claimed] features is not persuasive [of
patentability] since it does not mean that the materials of
Baiker lack these properties.” This statement reflects that
the examiner regards the products/materials of Baiker as
corresponding to the appellant’s claimed products/materials
and concomitantly that Baiker’s products/materials inherently
possess the properties recited in the appealed claims.
However, the record before us contains utterly no evidence or
rationale in support of such a position. See, for example, In
re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-1951
(Fed. Cir. 1999); Ex parte Skinner, 2 USPQ2d 1788, 1789 (Bd.
App. Pat. & Int. 1986). On the other hand, the appellant’s
declaration filed June 27, 1996 under 37 CFR § 1.132 evinces
that the products/materials of Baiker do not correspond to and
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