Appeal No. 2005-0637
Application No. 10/117,958
In view of the above discussion, in order for us to sustain
the Examiner’s rejection, we would need to resort to
impermissible speculation or unfounded assumptions or rationales
to supply deficiencies in the factual basis of the rejection
before us. 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). Accordingly, since all of the claim
limitations are not present in the disclosure of Martin, we do
not sustain the Examiner’s 35 U.S.C. § 102(b) rejection of
appealed claims 15 and 17.
Turning to a consideration of the Examiner’s 35 U.S.C.
§ 102(b) rejection of independent claim 16 we note that, while we
found Appellants’ arguments to be persuasive with respect to the
Examiner’s rejection of claims 15 and 17 discussed supra, we
reach the opposite conclusion with respect to claim 16. We agree
with the Examiner (Answer, page 4) that, as illustrated in
Figures 2 and 3 of Martin, the step areas 80 and 86 have freely
moved up and down. Appellants’ argument to the contrary
notwithstanding, we find no structure in Martin which would act
as a restraint against such free movement.
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