Appeal No. 2005-1216
Application No. 10/117,453
these circumstances, we find it more expedient to vacate the examiner’s rejections and
set forth a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). See our
discussion, infra.
IV. Anticipation in view of Vestal
The examiner argues that Vestal discloses a sample plate which “consists of a
square plate of stainless steel or other suitable electrically conducting material.”
Answer, p. 7. The examiner further argues that the sample plate “contains a plurality of
sample positions . . . [on which] [s]amples may be deposited . . . in a variety of ways.”
Id. The examiner still further argues that Vestal discloses an alternative embodiment
wherein “[t]he samples may . . . be placed on the ends of removable pins and the pins
locked into a two dimensional array using a sample holder positioned on a plate.”
We find that the examiner’s position lacks merit.
Here, we agree with the appellants that the examiner’s reliance on the first
embodiment, which is illustrated in Figure 1 of the Vestal patent, is misdirected. There,
we find that the sample plate “contains a plurality of precisely determinable sample
positions 16 on the upper sample receiving surface 18 of the plate.” Vestal, col. 3, lines
64-66. It is apparent not only from the figure, but also from the subsequent discussion
thereof that the sample positions are not protruding from the surface of the sample
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