Appeal No. 97-2736
Application 08/067,221
claimed range. While some latitude on the size of the
aperture (60) in Pritchard is certainly provided for, the
degree of any such size variation is limited by the other
disclosure in Pritchard (column 1, lines 44-50) concerning the
function of the aperture (60) in allowing less than 10
percent, and desirably less than 5 percent, of the emitted gas
stream from the exit orifice of the aerosol source to pass
therethrough. Given the clear disclosure in Pritchard that
the aperture (60) is on the order of about 2mm in diameter and
the limitations on the function of the aperture in the aerosol
apparatus of Pritchard, we find it incomprehensible that one
of ordinary skill in the art would have contemplated sizing
the aperture (60) in the manner urged by the examiner, that
is, so as
to make the aperture of Pritchard 250% larger than the
disclosure therein would seem to indicate is appropriate.
In our opinion, the examiner’s above position is based on
impermissible hindsight gleaned from appellants’ own
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