Appeal No. 95-4237
Application 07/887,002
the member is controlled.”
In rejecting claim 1 as being anticipated by Anxionnaz,
Miller or Eknes, the examiner considers the blower 14 of
Anxionnaz, the elements 12, 34 of Miller, and the valves 22a,
22b of Eknes as corresponding to the claimed transpirational
control device. The examiner also takes the position that the
holes or pores in the outer surface of each of the references
will allow flow to move in either direction depending on the
pressure differential present (answer, pages 3 and 4). In
this latter regard, the examiner further explains on pages 6-7
that
[w]hat is being claimed is that . . . a member
subject to pressure loads has a porous surface where
flow can go in and out, which is true of any surface
with holes in it and is setting in a flow that
fluctuates[,] thus fluctuating the pressure around
it and thus flow in and out of the holes. It is
also noted as stated above that the claims do not
specify any structure or means that would cause flow
in and out of the same holes as continually argued
by the Appellant.
Based on the above, it is apparent that the examiner’s
anticipation rejections based on Anxionnaz, Miller and Eknes
raise a question of inherency with respect to the reference
structures. Inherency may not be established by probabilities
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