Appeal No. 2001-0671
Application No. 09/129,088
interpreted by skilled artisans as “preselecting” procedures required to determine
solutions and “dynamic programming model” would have been interpreted in context
with the “rate of delivery of commodities.” We find no reason for such “interpretations”
and the examiner has provided us with none. Accordingly, the examiner has provided
no convincing rationale for a finding of these specifically claimed limitations in the
applied references.
The examiner also indicates that Masch shows “production throughput” and that
this is interpreted “in context as ‘rate of delivery of commodities . . .’” [answer-page 7].
Again, we find no support for such an allegation. The recitation of “production
throughput” may just as well refer to a quantity, rather than to a rate or to a rate of
delivery of commodities. We find no clear suggestion in the applied references for the
“rate of delivery of commodities,” as claimed, and the examiner’s interpretation of the
term, “production throughput,” as referring to a rate of delivery of commodities is pure
speculation. A proper rejection under 35 U.S.C. § 103 may not be based on
speculation.
Since the examiner has provided no convincing support for the many allegations
of where the claimed elements are disclosed or suggested by the applied references,
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