Appeal No. 1997-3056 Application No. 08/377,966 1 and 3. Particularly when viewed from this perspective, the apparatus defined by appealed claims 1 and 3 appears to be structurally indistinguishable from the apparatus defined by patent claims 1 and 2. Stated otherwise, each of the structural requirements of appealed claims 1 and 3 appears to be fully satisfied by the apparatus structure of patent claims 1 and 2. As we have previously indicated the structure defined by these patent claims must be capable of performing the functions of appealed claims 1 and 3. Concerning this point, we here reiterate the previously quoted factual finding by the Examiner that “[t]he instant claims differ from the patent [claims] in the rate of sampling a throughput of at least 100 liters/minute [as recited in appealed independent claim 1] ... and a hold up volume of not more than 40 milliliters [as recited in appealed independent claim 1]”. This finding suggests that the structure defined by the patent claims is not capable of performing the appealed independent claim 1 functions of “rapidly sampling ambient air at a rate of at least 100 liters/minute” and of “solubilizing the analyte contained in said particulates into a volume of not more than about 40 milliliters of liquid extractant”. However, this factual finding by the Examiner is clearly erroneous. In light of the disclosure 99Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 NextLast modified: November 3, 2007