Appeal No. 95-4857
Application 08/101,000
After fully considering the record in light of the
arguments presented by appellants and the examiner, we con-
clude that this rejection will not be sustained.
Considering first the examiner's argument (4), we
understand this to be directed to the fact that the Rule 132
Declaration purportedly shows that the recited dimensions and
ratios are critical to achieve desirable sealing pressures and
insert forces, while such properties are not disclosed as
critical in appellants' specification. This argument is not
well taken, however, because in accordance with the holding in
In re Chu, 66 F.3d 292, 298, 36 USPQ2d 1089, 1094 (Fed. Cir.
1995), the evidence and/or arguments presented by an applicant
in response to a rejection under § 103 do not have to be
contained within the specification in order to be considered.
Thus in this case, appellants are not precluded from submit-
ting evidence to show that the claimed numerical limitations
are critical to achieve advantages not disclosed in their
application.
4
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