Appeal No. 1999-0406
Application 08/484,019
alleged new and unexpected results, the appellant’s
declarations, taken as a whole, indicate that these results
are afforded by a vapor generator having holes with
substantially circular cross-section. None of the claims in
question, however, requires that the holes be of substantially
circular cross-section. Thus, to the extent that the
appellant’s showing does demonstrate surprising and unexpected
results, it is not commensurate with the actual broad scope of
claims 3, 5, 17, 18, 32 and 33.
Given the totality of the record, by a preponderance of
evidence with due consideration to persuasiveness of argument,
we are satisfied that the differences between the subject
matter recited in claims 3, 5, 17, 18, 32 and 33 and the prior
art are such that the subject matter as a whole would have
been obvious at the time the invention was made to a person
having ordinary skill in the art.
As for the obviousness-type double patenting rejection,
the question is whether any claim in the application defines
merely an obvious variation of an invention disclosed and
claimed in the patent. In re Vogel, 422 F.2d 438, 441, 164
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