Appeal No. 96-0037
Application 08/237,224
3. This difference is acknowledged by the examiner, who states
that
Barnes differs from the claimed invention in that it is
silent on the opening of the fluid outlet being
upwardly disposed (Answer, page 3).
In response to the appellants' argument that because Barnes
teaches an orientation that is opposite to that claimed it does
not provide the basis for a conclusion that the subject matter of
the claims would have been obvious, the examiner sets forth two
theories. The first is that
it would have been an obvious choice of design for one
of ordinary skill in the art to orient the gas outlet
of Barnes upwardly, instead of downwardly, because an
upwardly pointed gas outlet is functionally equivalent
to a downwardly pointed outlet when the catalyst
particle velocity is sufficiently high (Answer, page
3).
We cannot agree. First of all, the examiner has presented no
evidence that the two orientations are "functionally equivalent."
Moreover, evidence and information has been furnished by the
appellants in the specification and by way of declaration and
explanation that they are not functionally equivalent, in that
the claimed orientation provides an increase in separation
efficiency over that disclosed by Barnes (specification, pages 10
and 11; Silverman declaration; Brief, pages 7 and 8).
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