Appeal No. 1998-3055
Application No. 08/631,591
THE REJECTIONS
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 1-4 over Castelain, and claim 5 over Lauwers.
OPINION
We reverse the aforementioned rejections.
Rejection of claims 1-4
We need to address only claim 1, which is the sole
independent claim among claims 1-4.
Claim 1 requires that the lowest point of each gas exit
port of each burner has a vertical position that is about 18 to
about 30 inches above the glass surface. The appellants place
the exit ports at this vertical position because it reduces the
gas velocity near the glass surface, thereby lowering the alkali
volatilization from the glass bath (specification, pages 6-7).
The examiner argues that the burner height is merely a
matter of optimization, the determination of which would not
have required undue experimentation (answer, page 3). The
examiner, however, has provided no evidence that the burner gas
exit port height was known in the art to be a result effective
variable and, therefore, a variable which one of ordinary skill
in the art would have optimized. See In re Boesch, 617 F.2d
272, 276, 205 USPQ 215, 219 (CCPA 1980). Moreover, even if the
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