Appeal No. 1997-4046 Page 16
Application No. 08/040,117
the Niehaus pump of whatever length is necessary to produce the
desired results, including making it less than 10 feet in
length, in the light of the suggestion provided in the
reference. A prima facie case of obviousness having been
established, the Section 103 rejection of claim 29 on the basis
of Niehaus is sustained.
The same reasoning applies to the requirement in
independent claim 31 that the pump be inserted into liquid at
least 26 feet below the surface, and which was added to claim
30 by dependent claim 32 in terms of pumping the liquid
vertically at least 26 feet. The appellants merely have argued
that the numerical limitation exists in the claim, but have not
urged that it has any critical bearing upon the invention.
Niehaus states that the inventive pump is for pumping samples
from wells, which one of ordinary skill in the art can be
expected to know commonly run to depths greater than 26 feet.
It therefore is our conclusion that the subject matter recited
in claim 31 and 32 would have been obvious to one of ordinary
skill in the art, that is, a prima facie case of obviousness
has been established with regard to the subject matter recited
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