Appeal No. 1996-4174 Page 9
Application No. 08/134,204
Moreover, the examiner’s argument is not persuasive
because the examiner has not provided evidence that the level
of ordinary skill in the art was such that the ordinarily
skilled artisan would have had been led to make the
modification as proposed with a reasonable expectation of
success. We note that the examiner has not cited any
particular reference showing a pair of tube-in-tube heat
exchangers and means for recirculating heat exchange fluid
therebetween in an arrangement that in combination with the
teachings of Binning would have rendered the overall claimed
apparatus obvious within the meaning of 35 U.S.C. § 103.
The determination of obviousness must be based on facts,
and not on unsupported generalities. See In re Freed, 425
F.2d 785, 787, 165 USPQ 570, 571 (CCPA 1970). Hence, it is
manifest that the examiner's stated rejection falls short of
establishing the obviousness of the claimed structure herein
including the claimed tube-in-tube heat exchangers and means
for circulating heat
transfer fluid between the exchangers. Accordingly, we will
not sustain the examiner's § 103 rejection of claims 16-18
over Binning.
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