Appeal No. 2005-1348
Application No. 09/534,466
copies per hour, suggesting that there is printing occurring (see
column 4, lines 22-23).
We also agree with appellants that if the increase in web
tension in Jurkewitz is what indicates the mode change, as
asserted by the examiner, mapping the signal P in the reference,
then the increase in web tension cannot be “in response to a
signal indicating a change in printing mode from a white web
mode,” as recited in instant claim 1. This is so because the
increasing of the web tension is the signal (see page 2 of the
reply brief).
Thus, when we weigh the arguments of both sides, appellants’
arguments appear to be based more on evidence provided by the
reference while the examiner’s arguments appear to us to be more
speculative. Since a rejection under 35 U.S.C. § 102(e) cannot
be based on speculation, we will not sustain the rejection of
claim 1 under 35 U.S.C. § 102(e) over Jurkewitz. Nor will we
sustain the rejection of claims 2 and 14, dependent on claim 1,
under 35 U.S.C. § 102(e).
Since independent claim 6 has similar language, we also will
not sustain the rejection of claim 6, or of claims 10 and 11,
dependent thereon, under 35 U.S.C. § 102(e).
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