Appeal No. 2005-2760
Application 09/915,963
While appellant presents no specific definition of
“symmetrical finite ground plane,” the examiner does not explain
why the ground plane in Wicks is considered to be such a ground
plane. The burden of proof is on the examiner in the first
instance. In the instant case, the examiner has clearly not
carried that burden in establishing anticipation of the instant
claimed subject matter. It is not enough to say that a ground
plane that extends to infinity must be a symmetrical finite
ground plane, as claimed, without the examiner offering any
definition of his/her own for the claimed term.
Since Wicks is entirely silent as to the matter of a
symmetrical finite ground plane, we would need to resort to
speculation to make any determination that Wicks, in fact,
discloses such a ground plane. Deficiencies in the factual basis
for an examiner’s rejection cannot be supplied by resorting to
speculation or unsupported generalities. In re Freed, 425 F.2d
785, 787, 165 USPQ 570, 571 (CCPA 1970); In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Accordingly, we will not sustain the rejection of claims 1,
3, 5-9, 11, 13, and 15-18 under 35 U.S.C. § 102(e).
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