Appeal No. 1998-0408
Application No. 08/176,861
and assumptions are necessary in order to determine what in
fact is being claimed. In particular, we note that the glass
fibre-reinforced paper strip of Melin is "tear-resistant";
however, in that appellants' specification does not provide
sufficient guidance determining the degree of tear resistance
required to meet the functional (safety) limitation of claim
1, we are unable to ascertain with any certainty whether
Melin's strip inherently possesses the necessary tear
resistance. Since a rejection based on prior art cannot be
based on speculations and assumptions (see In re Steele, 305
F.2d 859, 862, 134 USPQ 292, 295 (CCPA 1962)), we are
constrained to reverse, pro forma, the examiner's rejections
of claims 1-4, 10-12, 26 and 27 under 35 U.S.C. § 103. We
hasten to add that this is a procedural reversal rather than
one based upon the merits of the 35 U.S.C. § 103 rejections.
Claims 20-22 and 28
The examiner's rationale in rejecting claims 20-22 and 28
under 35 U.S.C. § 103 as being unpatentable over Melin in view
of Hansen is that,
since Melin and Hansen teaches a waterproof and tear
resistance [sic: resistant] wrist band having a bar
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