Appeal No. 2006-3056 9
Application No. 10/278,769
anticipation under 35 U.S.C. § 102(b) without resorting to considerable speculation and
conjecture as to exactly what the claims on appeal actually cover and thus the boundaries
of what might constitute infringement of those claims. This being the case, we are
constrained to reverse the examiner's rejection of appealed claims 13 through 24 under 35
U.S.C. § 102(b) in light of the holding in In re Steele, 305 F.3d 859, 134 USPQ 292 (CCPA
1962). We hasten to add that this reversal of the examiner's rejection is not based on the
merits of the rejection, but only on technical grounds relating to the indefiniteness of the
appealed claims.
In Summary: since we have not sustained the rejection of claims 1 through 24 put forth
by the examiner under 35 U.S.C.
§ 102(b), it follows that the decision of the examiner is reversed.
This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b)
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz. Pat.
Office 21 (September 7, 2004)). 37 CFR § 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
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