Appeal No. 2001-1966
Application 09/140,846
As to the second stated rejection, we reach the same result
as to both independent claims 1 and 30 on appeal. The examiner
appears to be relying on Figure 7B in Jacobson and its
corresponding discussion in the paragraph bridging columns 5 and
6 of this reference. Polymer dispersed liquid crystals (PDLC)
450 in Figure 7B are shown to be in the form of capsules and
within a larger capsule 420, yet the reference is silent as to
what the nature of the medium is, if any, within capsule 420 into
which has been placed the polymer dispersed liquid crystals 450.
We are thus left to speculate as to whether there is any
"suspending fluid" as recited in independent claim 1 on appeal.
As to independent claim 30, there is no teaching or suggestion
that the capsule 420 has in turn been placed "in a binder" as
recited at the end of claim 30 on appeal.
As to both stated rejections of the claims on appeal, in
order for us to sustain the examiner’s rejection under 35 U.S.C.
§ 103, we would need to resort to speculation or unfounded
assumptions to supply deficiencies in the factual basis of the
rejections. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968), reh’g
denied, 390 U.S. 1000 (1968). This we decline to do.
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