Appeal No. 99-0872
Application 08/885,399
We decline to attempt a salvage of the examiner’s
deficient rejection by either (1) digging into Duwaer at a
level beyond that addressed by the examiner, or (2)
buttressing the examiner’s inadequate positions with
additional rationale not expressed by the examiner. It is not
our role to conduct examination in the first instance, nor is
it fair to the appellants to have a rejection affirmed based
on a position or rationale not explained by the examiner. A
poorly articulated and/or inadequately formulated rejection
has its consequences, i.e., the applicant for patent has not
been shown that he or she is not entitled to a patent. We
decline to ponder or to speculate as to whether another
rationale, another critical finding, or clearer explanations
could have been made by the examiner, which would have cured
the deficiencies in the rejections on appeal. It suffices to
say only that the rejections as advanced and presented by the
examiner in this appeal cannot be sustained.
A rejection that is 99% adequate is still 100%
inadequate. An almost good rejection is not a good rejection.
Conclusion
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