Appeal No. 96-3445
Application 08/233,088
reconstruction to supply deficiencies in the factual basis. See
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
In the instant case, the examiner is of the opinion that
the only difference between the injector of the claimed invention
and that of McKay resides in the recitation in claims 2 and 3 of
a valve disc. According to the examiner it would have been
obvious to substitute a well-known valve disc for the valve
element 70 disclosed in McKay (Examiner’s Answer at page 2).
The appellants do not challenge the conclusion of the
examiner that it would have been obvious to substitute a disc
valve for the valve element disclosed in McKay. Appellants argue
that McKay does not suggest the subject matter of claims 2 and 3
because McKay does not disclose that:
the volume of the central passage between the
valve seat and the valve disc is in the range
of about ten to about twenty times the
maximum volume of the fuel delivered through
the nozzle during a fuel metering event
[brief, page 4].
The examiner has stated that the above language is
functional language that is related to the volume of the central
passage as well as to the method of operation of the fuel
injector and that the claims do not positively recite structural
limitations that are not obvious from or shown in McKay. To the
extent that the examiner views the above quoted language, which
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