Appeal 2007-0891
Application 09/445,043
The prior art reference of record relied upon by the Examiner in
rejecting the appealed claims is:
Hiroshi JP 6-219464 Aug. 09, 1994
Claims 1, 3, 4, 6, 8 through 11, and 13 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Hiroshi.
We refer to the Examiner's Answer (mailed June 16, 2006) and to
Appellants' Brief (filed March 27, 2006) and Reply Brief (filed August 18,
2006) for the respective arguments.
SUMMARY OF DECISION
As a consequence of our review, we will reverse the obviousness
rejection of claims 1, 3, 4, 6, 8 through 11, and 13.
OPINION
Appellants contend (Br. 16-19) that the Examiner has applied
impermissible hindsight in determining that the claimed spacing between the
laminar member and the flexible membrane in Hiroshi would have been
obvious. We agree for the reasons stated infra.
The Examiner admits (Answer 3) that "Hiroshi is silent regarding the
spacing between the laminar member and the flexible membrane." The
Examiner asserts (Answer 3) that it would have been obvious to limit the
spacing between the laminar member and the flexible membrane to "less
spaced a distance less than the maximum possible extension of the flexible
membrane? For the purposes of this appeal, we have interpreted the phrase
"maximum possible extension" to mean the maximum before bursting.
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