Appeal No. 03-0877 Page 5
Application No. 09/601,884
caused to flow through perforations 66 under the influence of the inlet suction of a
compressor 74. There is no description of this element in the specification; the
examiner has simply concluded that it “supports” the skin, apparently because it
appears to contact the skin at the leading edge and at the top of spar 82. The
appellants do not contest that the element designated by the examiner to be a “base
member ” does, in fact, define a wall of an air duct. However, the appellants argue that
the examiner’s conclusion that it supports the skin is not substantiated by any evidence,
and therefore is based upon speculation. We agree, noting in this regard that it also
could be argued that the skin is supported entirely by attachment at its rear edges to
the upper and lower flanges of spar 82. A rejection cannot be based upon speculation,1
and the rejection of claim 9 as being anticipated by Parikh fails at this juncture because,
in our opinion, one of ordinary skill in the art would not be in possession of the invention
recited in claim 9 from the teachings of this reference.
The appellants also argue that even if the element designated by the examiner
as the “base member” in Parikh were considered to perform that function, the reference
nevertheless falls short of being anticipatory in that it does not disclose or teach “said
base member including at least one plenum chamber” and “at least one micro channel
formed between said skin and said base member, said micro channel connecting said
at least one plenum chamber to said plurality of perforations,” as also is required by
1See In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962).
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