Appeal No. 1998-1357
Application No. 08/348,744
between the inner tank and the outer shell being sufficient to
at least meet a two-hour fire wall rating. In this regard, we
note that the examiner has not treated this limitation at all,
and that we have no basis to conclude that the insulating
material in the storage space 13 of Johnston necessarily
(inherently) has the required two-hour fire wall rating.
Therefore, we will not sustain the examiner's rejection of
claim 108 under 35 U.S.C. § 102(b) as being clearly
anticipated by Johnston.
We turn to the examiner's rejection of claims 118 and 132
under 35 U.S.C. § 103(a) as being unpatentable over Johnston.
As with claim 108 on appeal, each of claims 118 and 132 on
appeal recite a three layer storage tank and the specific
limitation that there be fire resistant insulating material
disposed within and filling the space between the inner tank
and the outer shell, the space having sufficient thickness to
enable the storage tank to at least meet a two hour fire wall
rating. The examiner concludes that:
[t]he wall spacings and fire rating would have been
obvious matters of choice in the above set forth
devices, motivated by the intended use and code
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