Appeal No. 2002-0950 Page 5
Application No. 09/655,147
other side 48 (the inclined edges of the top and bottom panels) of the miter joint
appearance. Thus, in light of the underlying disclosure, one skilled in the art would look
to that “clearance” in attempting to understand what is meant by “clearance location” in
claim 1 and would be confused as to what is meant thereby.
Moreover, we also agree with the examiner that it is unclear to what “therefrom”
refers in the phrase “terminating at a clearance location therefrom,” especially when
viewed in light of appellant’s explanation of “clearance location.” Simply stated, it is
unclear whether “therefrom” refers to “each other” (i.e., the top and bottom inclined
edges) or to the “top and bottom location.”
Furthermore, the examiner’s position that “said underlying operative positions”
lacks antecedent basis is well taken. The claim recites two “operative positions,” those
of the left and right flaps and those of the top and bottom panels. As pointed out by the
examiner, neither of these “operative positions” has been recited as being “underlying.”
As the use of the term “said” indicates that the terminology following “said” refers to
previously recited terminology in the claim and “underlying operative positions” have not
previously been recited in appellant’s claim, it is impossible to determine with any
certainty to what “said underlying operative positions” refers.
The examiner has withdrawn as a basis for the rejection under the second
paragraph of 35 U.S.C. § 112 the reason set forth in the last paragraph of the section
numbered “4" (see page 3 of the final rejection, Paper No. 4) and, hence, this basis is
not before us for review. Nevertheless, we, like the examiner, cannot escape the
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