Appeal No. 1998-0810 Page 6
Application No. 08/537,966
cannot be sustained. We further point out that the examiner has not seen fit to respond to
the arguments on pages 11-15 of the Brief in which the appellants have explained why the
subject matter recited in each of the claims on appeal patentably distinguishes over the
prior art.
There are two other matters that are worthy of comment on the record. One of the
distinguishing features which the appellants argue defines their invention over the applied
prior art is that it “dynamically” controls the flow of molten metal from the exit orifice of the
apparatus, in contrast to the “static” or “constant” control of flow taught by the two applied
references (see, for example, Brief, pages 9-12). In this regard, we note that the term
“dynamically” does not appear in the original disclosure, but was added to the claims in an
amendment after the final rejection (Paper No. 9), whereupon it became a key factor in the
appellant’s arguments. The examiner did not inquire of the appellants as to the meaning to
be applied to this term, the result being that no explicit definition is present in the record.
Nor did the examiner raise any question regarding the fact that the specification fails to
describe, and the drawing fails to show, the communication link between the atomizer and
the computer which would seem to be necessary in order to coordinate the orientation of
the atomizer with the flow rate of the molten metal stream exiting from the apparatus,
pursuant to maintaining the claimed “dynamic” control.
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