Appeal No. 1998-1004
Application 08/401,984
Rather than reiterate the respective positions advanced by the examiner and appellants, we refer
to the examiner’s answer and supplemental answer, and to appellants’ brief, reply brief and
supplemental reply brief for a complete exposition thereof.
Opinion
The appealed claims, as represented by claim 24,2 are drawn to an exhaust gas treatment
apparatus which essentially differs from the apparatus for the same use in the same manner taught in
Levendis in that the reference does not specifically disclose an electric burner or heater having the
structure of a “plate . . . on said electric heater or said electric heater is embedded in said plate,” as
specified in the sixth clause of claim 24. Compare, e.g., specification FIGs. 1 and 10, burner device 6,
with Levendis FIG. 4, electric burner 24, FIG. 5B, electric burner device 60, and FIG. 8, burner device
120. In specification FIG. 10, it is apparent that flat base plate 62 is positioned on electric heater 50 at
the bottom of burner device 6, which is illustrated as a resistive filament or coil heater (specification,
e.g., page 18, line 24, through page 20, line 9). In Levendis FIG. 5B, the resistive coils of electric
heater 62 is shown as an exposed heating element situated on a base plate at the bottom of electric
burner device 60, and Levendis teaches that “[i]n place of electric burner 60 other electric burners may
be employed as well within [sic, without] departing from the inventive concept” (col. 5, lines 28-51). In
Levendis FIG. 8, the burner device 120, positioned at the bottom of system 100 and having a base
plate, “may be a coil heater,” for example (col. 7, lines 64-66, and col. 8, lines 3-4), but there is no
indication of the position of the coil heater in burner device 120.
In considering this difference between the claimed apparatus encompassed by claim 24 and the
apparatus taught by Levendis, on this record , we agree with appellants (reply brief, page 4) that the
claim term “plate” should be interpreted as having its ordinary and common dictionary meaning of a flat,
smooth rigid body. See In re Morris, 127 F.3d 1048, 1055-56, 44 USPQ2d 1023, 1029 (Fed. Cir.
1997). Indeed, we find that one of ordinary skill in this art
2 Appellants state in their brief (page 3) that the appealed claims “do not stand or fall together.” The
examiner finds that appellants separately argued only claims 27 and 30 in the brief (answer, page 3),
which position was not challenged by appellants in the reply brief. Thus, we decide this appeal based
on appealed claims 24, 27 and 30. 37 CFR § 1.192(c)(7) (1995).
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