Appeal No. 1997-3056
Application No. 08/377,966
1 and 3. Particularly when viewed from this perspective, the
apparatus defined by appealed claims 1 and 3 appears to be
structurally indistinguishable from the apparatus defined by
patent claims 1 and 2. Stated otherwise, each of the structural
requirements of appealed claims 1 and 3 appears to be fully
satisfied by the apparatus structure of patent claims 1 and 2.
As we have previously indicated the structure defined by
these patent claims must be capable of performing the functions of
appealed claims 1 and 3. Concerning this point, we here reiterate
the previously quoted factual finding by the Examiner that “[t]he
instant claims differ from the patent [claims] in the rate of
sampling a throughput of at least 100 liters/minute [as recited in
appealed independent claim 1] ... and a hold up volume of not more
than 40 milliliters [as recited in appealed independent claim 1]”.
This finding suggests that the structure defined by the patent
claims is not capable of performing the appealed independent
claim 1 functions of “rapidly sampling ambient air at a rate of at
least 100 liters/minute” and of “solubilizing the analyte contained
in said particulates into a volume of not more than about 40
milliliters of liquid extractant”. However, this factual finding
by the Examiner is clearly erroneous. In light of the disclosure
99
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