Appeal No. 2004-0540 Page 5
Application No. 09/601,237
a constant symmetric cross section along their entire length and argues that the
examiner has failed to identify the proper motivation, much less any reasonable
expectation of success, for the proposed combination and that, even if one were to
attempt to deform the flat tubes of Nonogaki, Le Gauyer ‘221 or Martins, the integrity of
the marginal zones would be breached and the resultant structure would not be brazed
mutually face to face along the entire length of the marginal zones. See pages 5 and 6
of the brief.
We find ourselves in agreement with appellant. While Nonogaki, Le Gauyer ‘221
and Martins disclose tubes formed by a strip of sheet metal folded so as to form spacers
and two longitudinal flow channels, they teach nothing about varying the cross section
of the tube along its length. It is only with the benefit of hindsight derived by reading
appellant’s disclosure that one of ordinary skill in the art would have been motivated to
deform the tubes in the manner called for in appellant’s claim 1, without deforming the
spacer formed by the marginal zones, such that the marginal zones are brazed mutually
face-to-face continuously along their entire length. This, of course, is not a proper basis
for a rejection. See In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed.
Cir. 1992). We therefore shall not sustain the examiner’s rejection of claim 1, or claims
2-4, 6 and 7 which depend from claim 1.
CONCLUSION
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