Appeal No. 2005-0433
Application No. 09/982,481
indicate the remainder of the records. Each of the two data points in Figure 11 is
assigned a record, consistent with what is actually required by instant claim 1.3
We thus are not persuaded that the rejection of representative claim 1 is in error.
We sustain the rejection of claims 1-30 under 35 U.S.C. § 102 as being anticipated by
Tabei.
We reverse, pro forma, the rejection of claims 31 and 32 under 35 U.S.C. § 103
over Tabei, since we are unable to ascertain the scope of the claims for any meaningful
comparison with the prior art. The reversal of claims 31 and 32 is for the reason that
rejections of claims over prior art should not be based on speculation and assumptions
as to the scope of the claims. See In re Steele, 305 F.2d 859, 862, 134 USPQ 292, 295
(CCPA 1962). We note, however, that we are not persuaded by the position set out in
the Answer that Tabei suggests a variable width column, or determines “a width of each
of the columns, the width of some columns being different than the width of other
columns,” based on the teachings relied upon in the reference.
New grounds of rejection
We enter the following new grounds of rejection against the claims in accordance
with 37 CFR § 41.50(b): Claims 31 and 32 are rejected under 35 U.S.C.
3 We add that, even if “adjacent” were to require contact between data points, the claim 1 aspect
would be met when (only) two of the data points of Tabei were not separated by an “unassigned” data
point.
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