Appeal No. 2001-0821
Application 08/962,567
anticipation. First, we agree with appellant that the portion of
Thompson-Russell relied on relates to the diagonal blind slots 24
and not to the vertical slots 10. The use of the term
“apertures” in the sentence quoted above is a clear error in
terminology and is inconsistent with the remainder of the
disclosure with respect to the apertures 10. Second, the use of
the term “pitch” in the sentence quoted above is clearly not
defined relative to the centers of the slots (blind slots)
because it is inconsistent with the values specifically disclosed
in the reference. The vertical pitch in Thompson-Russell is
clearly designated as being 0.77mm when measured from the centers
of the slots. There is no alternative embodiment disclosed.
Since a vertical pitch of 0.77mm is not within the claimed range
of 0.2mm to 0.5mm, Thompson-Russell does not fully meet the
invention as recited in representative claim 1.
We now consider the rejection of claims 1-11 and 14-25
based on Thompson-Russell and Hirabayashi. In rejecting claims
under 35 U.S.C. § 103, it is incumbent upon the examiner to
establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988). In so doing, the examiner is expected to
make the factual determinations set forth in Graham v. John Deere
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