Appeal No. 1998-1004
Application 08/401,984
Accordingly, we find that one of ordinary skill in this art would have been aware of such
problems caused by exposed resistive filament or coil of the heating element noted by appellant
Ichikawa in ¶ 3 of the declaration by mere observation of the performance of the exposed heating
elements in the apparatus of Levendis, and would have turned to the use of a ceramic covered heating
element which was already known in the art of treating exhaust gas as set forth by Levendis, or to other
covered heating elements known in other incineration arts as shown by Sword, Comstock and
Friedberg; the shape of the cover for the heating element being suggested by the base plate shape of the
bottom of the burners illustrated in the Levendis figures where the soot particulate accumulates. See In
re Ludwig, 353 F.2d 241, 243, 147 USPQ 420, 421 (CCPA 1965); In re Goodman, 339 F.2d 228,
232-33, 144 USPQ 30, 33-34 (CCPA 1964). We find no evidence or persuasive argument of record
which establishes the criticality of the plate shape of the cover for the heater element specified in
appealed claim 24 with respect to a different function or an unexpected result, over any of the cover
shapes specifically taught by Levendis or the other applied references. See Chu, supra.
We further find that the opinion expressed by appellant Ichikawa in ¶ 4 of the declaration
addresses the ultimate legal issue of obviousness in this case and thus is entitled to no weight. In re
Reuter, 651 F.2d 751, 759, 210 USPQ 249, 256 (CCPA 1981).
We have again reconsidered the record with respect to appealed claims 27 and 30, but remain
of the opinion we expressed above with respect to these claims.
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in Levendis alone and as combined with Sword,
Kunowich, Comstock and Friedberg, with appellants’ countervailing evidence of and argument for
nonobviousness and conclude that the claimed invention encompassed by appealed claims 24 through
30 and 38 would have been obvious as a matter of law under 35 U.S.C. § 103.
The examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with this appeal may be extended
under 37 CFR § 1.136(a).
2, July 1996).
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