Appeal No. 99-0029
Application 08/595,967
Henderson discloses apparatus for making carbon black in which oil is discharged through nozzle 8 and
fuel and air are introduced into axial zone 1. The examiner notes that Henderson discloses a cone 20
positioned around the conduit 6 leading to nozzle 8, and asserts that in view thereof it would have been
obvious to dispose a conical vane around Vatsky's burner tubular member 24/24a. However, we note
that Henderson's cone is longitudinally movable relative to conduit 6, and the disclosed function of the
cone is to direct a portion of the reactants in axial zone 1 across the oil nozzle 8, thereby "changing the
structure of the carbon black produced" (col. 6, lines 26 to 28) or "influenc[ing] the quality of the
carbon black produced" (col. 5, lines 66 and 67). It is not evident to us why this disclosure would have
taught or suggested to one skilled in the art placing a conical vane around the burner of Vatsky, since
Vatsky is not concerned with making carbon black (or any product), but simply with burning particulate
coal. In this instance, we agree with appellant that such a modification of Vatsky would be the result of
impermissible hindsight.
On page 6 of the answer, the examiner asserts that "In general, conical vanes disposed around
a fuel-conveying conduit in a burner are well-known in the art," but the only evidence cited in support of
this assertion is Henderson, which, as discussed above, discloses using a conical vane only for the
specific purpose of changing or influencing the structure or quality of carbon black being produced,
rather than containing a broad teaching consonant with the examiner's assertion. A rejection based on
35 U.S.C. § 103 must rest on a factual basis, rather than speculation, unfounded assumptions or
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