Appeal No. 2003-0707
Application 09/690,534
vertically above the wheel. The fact that the mower deck, when
moving to the transport position, swings rearwardly about the
third pivot mechanism 60 to an extent not clearly shown or
described makes any determination of this sort speculative at
best. Under this scenario, the examiner’s rejection must fall.
Goman’s disclosure simply does not provide the factual basis
necessary to determine whether or not the mower deck 18 is moved
to a position occupying space vertically above a wheel when the
push arm 24 is moved to the transport position. This ambiguity
is fatal to the rejection at hand as it is well established that
an anticipation rejection cannot be predicated on an ambiguous
reference. In re Turlay, 304 F.2d 893, 899, 134 USPQ 355, 360
(CCPA 1962).
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of independent claim 1 and dependent claims 2
through 5 and 9 through 11 as being anticipated by Goman.
SUMMARY
The decision of the examiner to reject claims 1 through 5
and 9 through 11 is reversed.
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