Appeal No. 2000-0744
Application No. 09/052,162
that the line indicates the shaft, the rotor is directly adjacent the shaft, hence the inner
periphery of the rotor is “directly exposed” and the claim language is met. Appellant
argues that this line is indicative of a hollow shaft separating the rotor from the motor shaft,
as in prior art Figure 1 of the application, so that the inner periphery is not “directly
exposed,” as claimed.
Since Harned is silent as to the meaning of this line, any conclusion to be reached
can only be based on speculation. An ambiguous reference will not support a section 102
rejection. In re Hughes, 345 F.2d 184, 145 USPQ 467 (CCPA 1965). Accordingly, we will
not sustain the rejection of claims 1 and 2 under 35 U.S.C.
§ 102(b) based on Harned.
The examiner attempts to bring in a reference to “Kieffer” [answer-page 4] to
explain the rejection, but Kieffer forms no part of the statement of rejection and we will,
therefore, not consider it. Where a reference is relied on to support a rejection,
whether or not in a minor capacity, there would appear to be no excuse for not positively
including the reference in the statement of the rejection. In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
We would also note that, while not argued by appellant, if “directly exposed,” as
claimed, is taken to mean that there is no case or housing around the element, as intended
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