Appeal No. 2003-1615
Application No. 09/274,639
id.; In re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1316-
17 (Fed. Cir. 2000).
In the present case, the examiner has simply failed to
meet this aforementioned burden for the following reasons.
In the rejection, the examiner states “[s]ince both
methods to form the seam of the mounting sheets were art-
recognized equivalents at the time the invention was made in
insulating and supporting the catalytic converter within the
casing, one of ordinary skill in the art would have found it
obvious to substitute one type of seam of Foster et al for
the other type of seam of either Merry or Corn for the known
and expected results of obtaining the same results in the
absence of unexpected results.” Answer, pages 4-5.
However, we do not observe, and the examiner has not
pointed out, where in the cited art is it taught that the
seam depicted in Foster’s Figure 2 is an art recognized
equivalent of the seam of Merry or Corn. We find this
especially critical in view of the fact that the mounting
material 46 of Foster is used in a different context as
compared with the context in which the mounting material is
used in Corn or Merry. That is, as pointed out by appellant
in both the brief and reply brief, Foster’s sleeve is not
positioned around the majority of the face of the pollution
control element, and in fact is used in conjunction with wire
mesh sleeve 44, and cylindrical protrusions 62 and 64, to
form a sealing system. Brief, pages 18-19 and reply brief,
pages 7-8. We conclude, therefore, that the examiner’s
conclusion of “art-recognized equivalents” is not supported
by the facts before us.
Furthermore, we observe that appellant’s specification,
on page 7, at lines 9-20, indicates that end edges 16, 18 of
mounting material 10 are at a non-perpendicular angle to the
-5-
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