Appeal No. 1999-0036
Application 08/394,012
In Daugirda as modified by the examiner the fluted tubes of the heat exchanger will surround the
combustion region of the burner and carry water between the inlet-outlet header (26) and the return
header (28). Thus, it appears to us that in the modified Daugirda system the outside surface area of the
flutes will be exposed to the heat produced by the burner, while the inside surface area of the flutes will
be exposed to the water circulated through the heat exchanger, the exact opposite of what is required in
appellants’ claim 1 on appeal. Accordingly, since a consideration of the collective teachings of
Daugirda and Krieger would not have made the subject matter as a whole of claim 1 on appeal obvious
to one of ordinary skill in the art at the time of appellants’ invention, we must refuse to sustain the
examiner’s rejection of claim 1, and of dependent claims 2 through 4, under 35 U.S.C. § 103.2
We have also reviewed the teachings of the additional reference to Landis applied by the
examiner against dependent claims 5 through 9 on appeal. However, we find nothing in this patent
which alters our view as stated above with regard to the basic combination of Daugirda
2During any further prosecution of this application before the examiner, appellants should
consider changing the introductory portion of claim 1 from “A burner” to -- A burner system
comprising a burner having an air aspirated nozzle...--, since it is readily apparent from reading claim 1
that this claim is directed to a combination of a burner and a heat exchanger, not to the burner per se.
The preamble or introductory portions of dependent claims 2 through 9 should likewise be changed to
more clearly reflect that the claimed subject matter is a -- burner system --.
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