Appeal No. 95-4237
Application 07/887,002
1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
As to claims 4 and 5, appellants state on page 10 of the
brief that “[t]he present invention is not used to control
boundary layer separation [as in Lurz] and the holes are
larger than 1000 microns (Claims 4 and 5).” Neither of claims
4 and 5 calls for the perforations in the outer skin to be
larger than 1000 microns, and this limitation cannot be read
thereinto. In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ
541, 550-551 (CCPA 1969). Accordingly, appellants’ statement,
to the extent it may considered a separate argument for
patentability of claims 4 and 5, is not commensurate in scope
with the invention as claimed. In that features not claimed
may not be relied upon in support of patentability (In re
Self, 671 F.2d 1344, 1348, 213 USPQ 1, 5 (CCPA 1982)), as
argued, we will also sustain the examiner’s rejection of
claims 4 and 5 as being anticipated by Lurz.
The § 103 rejection based on Clites and Lurz
(rejection (e))
We will not sustain this rejection.
An objective of Clites is to provide a simple means for
controlling the boundary layer air flow over an airfoil, with
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