Appeal No. 1998-1357
Application No. 08/348,744
118 and 132 under 35 U.S.C. § 103(a) as being unpatentable
over Searle.
However, we also note that claim 139 includes the
limitation that the inner tank has "a capacity of at least
1000 gallons." The box 2 of Searle clearly does not have a
capacity of 1000 gallons, as required by claim 139 on appeal.
In our view there is no suggestion, incentive or motivation in
the applied reference to have modified the inner box 2 of
Searle to have a capacity of 1000 gallons. Accordingly, we
will not sustain the examiner's rejection of claim 139 under
35 U.S.C. § 103(a) as being unpatentable over Searle.
We see that in their reply brief (Paper No. 58)
appellants refer to the Declaration of William Y. Hall, filed
"on or about" December 27, 1996. Mr. Hall’s declaration
states:
26. As far as I am aware, the tank of the present
invention was the first tank ever to be certified by
a national testing agency as being capable of
meeting or exceeding a two hour fire wall rating. I
do not know of any prior tank that was capable of
meeting a two hour fire wall rating (Paper No. 52,
pages 4-5).
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