Appeal No. 96-3376
Application 08/164,889
claims 25 and 38 on appeal. Given the express limitation on the
height of the gap (h) in Carre column 3, lines 56-59, and the
showing in Figure 6 of Carre, it appears that the height of the
rings seen therein would be only slightly greater than 30
millimeters (i.e., about 1.2 inches), the maximum gap height.
Moreover, we find nothing in Carre to indicate that the height of
the rings therein would be considered by one of ordinary skill in
the art to have been a result effective variable. Accordingly,
we cannot agree with the examiner's position that the height of
the rings as expressed in appellants' claims 25 and 38 on appeal
would be considered by one of ordinary skill in the art to have
been merely an "optimum" choice arrived at through routine
experimentation.
To summarize, the decision of the examiner rejecting
claims 25, 27 through 32, 34, 36 and 38 under 35 U.S.C. § 103 is
affirmed as to claims 27 through 32, 34 and 36, but is reversed
as to claims 25 and 38. Accordingly, the decision of the
examiner is affirmed-in-part.
No time period for taking any subsequent action in con-
nection with this appeal may be extended under 37 CFR § 1.136(a).
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