Appeal No. 1998-1004
Application 08/401,984
would have so interpreted the term in light of the written description in the specification. See Morris,
127 F.3d at 1054-55, 44 USPQ2d at 1027. We note that the examiner has not explained why this
claim term is “not at all limited to the use of a ‘flat plate’ structure” (supplemental answer, page 3). Cf.
Morris, 127 F.3d at 1055-56, 44 USPQ2d at 1028-30 (“Absent an express definition in their
specification, the fact that appellants can point to definitions or usages that conform to their
interpretation does not make the PTO’s definition unreasonable when the PTO can point to other
sources that support its interpretation.”). We do not find any limitation with respect to the material from
which the “plate” is made in claim 24, or in any claim dependent thereon.
In view of the base plate at the bottom of the electric heaters common to the claimed apparatus
and that of Levendis, both of which are employed for the common purpose of oxidizing, inter alia, the
soot particulate (id.) in diesel exhaust, the basic difference is that, as seen from specification FIG. 10,
the resistive coil 50 at the bottom of the claimed heater structure is separated from the area of process
container 61 by at least the surface of a covering plate, such as plate 62, while electric heater 62 is
shown as an exposed heating element situated on a base plate at the bottom of electric burner device 60
in Levendis FIG. 5B. We find that Levendis discloses that resistive filaments embedded in ceramic
were known in the art to oxidize accumulated soot particulate (col. 1, lines 13-39). While the ceramic
in which the filament was embedded was in the form of a matrix serving as a trap for, inter alia, the
soot particulate (id.), we are of the opinion that one of ordinary skill in this art would have found in
Levendis the suggestion to fashion the ceramic covering for a resistive filament or coil heater into any
shape, including a solid piece such as a base plate, that would fit the position of the heater in an
apparatus and maintain the separation between soot particulate and filament, with the reasonable
expectation that soot particulate would be oxidized on the ceramic surface by the embedded filament or
coil heater. Thus, prima facie, one of ordinary skill in this art would have substituted a ceramic
covered resistive filament or coil heater fashioned to fit the bottom of electric burner device 60 in place
of electric heater 62 situated on a base plate in Levendis FIG. 5B, because the reference teaches that
other electric burners can be employed in this position (col. 5, lines 49-51). Similarly, this person would
have used a ceramic covered resistive filament or coil heater at the bottom of burner device 120 in
Levendis FIG. 8, where the soot particulate is shown to accumulate.
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