Appeal No. 1998-1004
Application 08/401,984
Ichikawa. See generally, In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984).
Our consideration of appellants’ evidence of nonobviousness in light of their arguments is based
on the totality of the record, even though the evidence and argument is in large part not based on any
disclosure in their specification. In re Chu, 66 F.3d 292, 297-99, 36 USPQ2d 1089, 1094-95 (Fed.
Cir. 1995) (“We have found no cases supporting the position that a patent applicant’s evidence and/or
arguments traversing a § 103 rejection must be contained within the specification.”). See brief, page 10.
We agree with appellants (brief, e.g., page 8; reply brief, e.g., pages 3-5) that neither Levendis
nor the other applied prior art specifically discloses an electric burner or heater below or embedded in a
plate per se, as specifically required by appealed claim 24. However, we cannot agree that “all
structural components” are not shown in Levendis (brief, page 8) because it is apparent from the
Levendis FIGs. 5B and 8 that a base plate is found at the bottom of electric burner devices 60 and 120,
that other electric heaters can be substituted for those illustrated in these figures, and that a ceramic
covered filament, separated from the soot particulate, was used in the art to oxidize soot particulate, as
we discussed above. On this evidence in Levendis, 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 devices 60 and 120, which would include incorporation of the heater element in the base plate of
these devices.
With respect to appellants’ contention that Sword, Comstock and Friedberg cannot be
combined with Levendis because they are non-analogous art (reply brief, pages 2-5; supplemental reply
brief, pages 2-3), it is apparent that the while these references are not from the field of exhaust gas
treatment, they are each concerned with the incineration of combustible materials in apparatus having an
electrical heating element in similar manner to Levendis. Thus, one of ordinary skill in this art would
have reasonably recognized in this relationship, the suggestion to combine the analogous teachings of
these references with respect to the protection and efficiency of the electrical heating element. See
generally, Pro-Mold and Tool Co. v. Great Lakes Plastics Inc., 75 F.3d 1568, 1573, 37 USPQ2d
1626, 1629-30 (Fed. Cir. 1996); In re Clay, 966 F.2d 656, 658, 23 USPQ2d 1058, 1060 (Fed. Cir.
1992); In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981)(“The test for
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