Appeal No. 2004-0942 Page 4
Application No. 08/718,573
Cousineau does not teach discharging water from the nozzle while it is spaced above
the bed, much less maintaining the nozzle positioned a distance above the bed while it
discharges water against the surface of the bed. In response, the examiner asserts that
Cousineau states numerous times that the “discharge member” is “adjacent to” the bed
which, applying the common definition of “adjacent,” constitutes a teaching that the
nozzle is “above” the bed (Answer, page 5). In the course of the examiner’s
presentation, reference is made to an earlier decision in this case2 in which a panel of
the Board of Patent Appeals and Interferences affirmed the rejection of the pending
claims based upon the same reference, with the examiner drawing attention to
statements made by the Board in that decision. However, it is important to note with
regard to the earlier Board decision that the single independent claim now before us
differs from that which was present in the previous appeal in that it contains the further
limitation that the nozzle is maintained at a distance above the bed while the water is
discharged toward the surface of the bed.
Cousineau discloses a system for uprooting aquatic plants. As shown in Figures
1 and 2 and explained in columns 4-6, pressurized water is pumped through a handle
12 and discharge member 14, whereupon it issues from a plurality of downwardly
oriented nozzles 18 such that “the water jets churn the soil 20a of the lake bottom 20,
undermining the roots by forming a pocket 36 of very loose soil and water,” the result
2Appeal No. 1999-2034, mailed August 16, 1999.
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