Appeal No. 2006-1562
Application No. 10/720,948
that “both references show the material to have sufficient
thickness” and “since no specific thickness is claimed then the
thickness of the material in both [the] Maged and [the] Micchia
[et al] patent[s] can be considered ‘sufficient’ to interfere
with the user’s ability to look in a specific direction”.
(Answer, page 7). “Anticipation of inventions set forth in
product claims cannot be predicated on mere conjecture
respecting the characteristics of products. . . .” W.L. Gore &
Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1556, 220 USPQ
303, 314 (Fed. Cir. 1983).
Accordingly, the Examiner’s anticipation rejections,
regarding Micchia and Maged, cannot be sustained. Because all
the § 103 rejections are based upon the Micchia patent and do
not cure the above discussed infirmity, these § 103 rejections
also cannot be sustained.
REMAND
We remand this application to the Examiner for action
consistent with our comments below.
Claim 1 requires a sports vision-training device comprising
“a piece of material having a thickness sufficient to interfere
with an individual’s ability to look in a specific direction at
a sporting object being controlled”, wherein the “piece has an
8
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