Appeal No. 94-1098
Application 07/712,581
analyzer of Stenger. Without reference to anything in Stenger’s4
disclosure, the examiner sets forth the following theory:
It was well known in the art that before using any
analytical equipment, a calibration of the equipment is
routinely done to ensure the equipment is performing
properly. When doing a calibration, a known
concentration of standard or control is used to produce
a vapor which is subsequently being detected;
therefore, the process of producing a known vapor
concentration is not only obvious but also required in
the Stenger et al. process. The method steps to carry
out the process of calibration by using a preselected
concentration of standard or control to produce a known
concentration of vapor in the Stenger et al. process is
well within the knowledge of one skilled in the art.
Therefore Stenger et al. do not teach away from the
claimed invention and the process of using a
preselected concentration to produce a known
concentration of vapor would have been an obvious step
in the Stenger et al. process as a step that is readily
apparent to one skilled in the art. [answer, page 8]
Although apparently unbeknownst to the examiner, Stenger, at
column 2, line 60 through column 3, line 10 does discuss
calibrating the carbon dioxide analyzer 35. As we understand it,
calibration of Stenger’s analyzer is accomplished by comparing
analyzer signal readings against standard calibration curves. In
order to obtain comparable readings, operating conditions,
4Our review of the record reveals that the examiner first
brought up the matter of calibrating Stenger’s apparatus in the
advisory letter mailed December 17, 1992 (Paper No. 9) in
response to appellants’ proposed amendment filed subsequent to
the final rejection.
7
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