Appeal No. 97-1078
Application 08/448,056
expansion coefficient of the claimed material
cordierite (see the thermal expansion coefficients
of Cordierite and Forsterite on page 759 of Vol. 4
of Engineered Materials Handbook ). Therefore, [4]
Cordierite and Forsterite are functionally
equivalent in their expansion coefficients and it is
considered to be obvious to substitute Cordierite,
with its known low expansion property for Forsterite
and its known low expansion property in view of the
teaching in Oda et al. of the use of cordierite in
heat exchangers for the purpose of obtaining high
heat resistance and thermal shock resistance [main
answer, pages 6 and 7].
The examiner’s position here is unsound for a number of
reasons.
To begin with, Davies does not provide any factual
support for the examiner’s assertion that forsterite was
selected for use in the middle layer or zone 13M of the Davies
regenerators due to a low thermal expansion property.
Moreover, the examiner’s determination that the
forsterite disclosed by Davies and the cordierite disclosed by
Oda have “functionally equivalent” coefficients of thermal
4 The record indicates that a copy of the pertinent
portion of this reference was mailed to the appellants with
the main answer (Paper No. 13). Since the reference was not
included in the statements of the rejections on appeal, its
use by the examiner to support the rejections is somewhat
suspect. See In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ
406, 407 n.3 (CCPA 1970).
7
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