Appeal No. 1998-3055
Application No. 08/631,591
alternatively, has not established that heights within this
range were conventional in the art.
The examiner relies upon In re Japikse, 181 F.2d 1019,
1023, 86 USPQ 70, 73 (CCPA 1950), wherein the court considered
shifting the position of a starting switch to not be a
patentable distinction because such a change did not modify the
operation of the device. The examiner has not established that
changing the burner gas exit port height does not modify the
operation of a glass melting furnace. The examiner has merely
relied upon a per se rule that shifting the location of a part
is prima facie obvious. As stated by the Federal Circuit in In
re Ochiai, 71 F.3d 1565, 1572, 37 USPQ2d 1127, 1133 (Fed. Cir.
1995), “reliance on per se rules of obviousness is legally
incorrect and must cease.”
For the above reasons, we conclude that the examiner has
not carried the burden of establishing a prima facie case of
obviousness of the invention recited in the appellants’
claims 1-4. We therefore reverse the rejection of these claims.
Rejection of claim 5
Claim 5 requires that the burners are in a staggered
formation and are at a height about 18 to about 36 inches above
the glass surface. As discussed above, the examiner has not
5
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