Appeal No. 1999-1770
Application 08/750,625
differs from that applied by the examiner, we will designate
our affirmance as a new ground of rejection pursuant to 37 CFR
§ 1.196(b) in order to afford appellants a fair opportunity to
respond thereto. Cf. In re Meyer, 599 F.2d 1026, 1031, 202
USPQ 175, 179 (CCPA 1979).
Cunningham does not disclose the various dimensions
recited in claims 6 and 8. The examiner contends that these4
would have been obvious as the optimum or workable ranges
(answer, pages 5 to 6). However, in the view we take of this
case, we do not consider that it would have been obvious to
make Cunningham's "perforations" (the bores of tubes 71) the
very small size (0.1 to 0.4 mm) recited in these claims,
noting that the bore as shown by Cunningham (Figs. 3 and 4) is
considerably larger in diameter than nozzle opening 101, which
has a disclosed diameter of .007 inches (0.178 mm) (col. 6,
lines 44 to 46). The rejection of claims 6 and 8 will not be
sustained.
4Since claim 8 is dependent on claim 7, it apparently
should have been included under rejection (3), rather than
rejection (2). This discrepancy is unimportant in view of the
result reached herein.
7
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