Appeal No. 1998-0093
Application No. 08/459,301
The examiner's Supplemental Answer does not address this
argument, which in our view has considerable merit. In both
Forrer and Malick, cooking is accomplished using infrared
radiation rather than heated air; in fact, the air is vented
to the atmosphere in order to prevent the internal components
from becoming too hot, as noted above. As a result, replacing
the vented, uninsulated walls in the ovens of Forrer and
Malick with unvented, insulated walls would fundamentally
alter the manner of operation of those ovens, which undercuts
the examiner's prima facie case for obviousness. Compare In
re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir.
1984) ("if the French apparatus were turned upside down, it
would be rendered inoperable for its intended purpose"); In re
Schulpen, 390 F.2d 1009, 1013, 157 USPQ 52, 55 (CCPA 1968)
("Rather than being made obvious by the reference, such
modification would run counter to its teaching by rendering
the apparatus inoperative to produce the disclosed tire
patches."). As a result, we are also reversing the rejection
of claims 1-3 based on either one of Forrer and Malick in view
of Huie and Buckingham.
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