Appeal No. 2002-0635
Application No. 09/534,583
Additionally, we do not agree with the examiner’s view
expressed at page 11 of the answer that the appellants have not
claimed any specific structure of a choke for a D.C. arc welder.
The preamble of independent claim 32 recites an output choke for
a D.C. arc welder and the end of this claim also recites the
functional limitation relating to the choke recited in this
preamble. Correspondingly, independent claim 22 has a similar
limitation or feature recited in the preamble as well as the
recitation of “said welder” at the end of the claim on appeal.
We also disagree with the examiner’s view at page 11 of the
answer that appellants have only claimed the intended use of the
choke. This view is misplaced since, as noted earlier, the
quoted features of independent claims 22 and 32 appeal clearly
relate to the functional limitations or properties associated
with the recited structure and not any use of the choke or any
other structure per se.
In order for us to sustain the examiner’s rejection under
35 U.S.C. § 102, 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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