Appeal No. 1999-0978 Page 4
Application No. 08/533,944
lines 5-13; page 6, line 24 to page 7, line 5) containing synthetic cooling agent additive. Claim 6
requires a step of “withdrawing said rail head from the cooling agent upon obtaining a surface
temperature of said rail head of between 450 and 550 °C.” In other words, the surface temperature of
the rail head within the bath is used as a criterion for the timeliness of the removal (specification, page
2). The removal occurs “upon obtaining” a particular surface temperature within the specified range
and, therefore, the claim excludes holding the rail head within the cooling agent while holding the
temperature constant at any value within that range.
The Examiner has failed to adequately explain how the combination of Iwasaki and Moser
teaches or suggests a process as claimed including the withdrawing step. The Examiner states that
Iwasaki does not describe a step of withdrawing the rail from the cooling agent before temperature
equalization over an entire cross-section of the rail head (Answer, page 4). The Examiner then relies on
several comparisons between the figures of Iwasaki and those of the application as evidence that
temperature equalization over an entire cross-section of the rail is not reached in the process of Iwasaki
(Answer, pages 4 and 6-8). However, the Examiner has not addressed the issue of when the rail head
is removed from the cooling agent.
The withdrawing step requires that removal occur before the isothermal transformation step of
Iwasaki. However, it is unclear whether the rail head remains in the cooling agent during isothermal
transformation on the present record. Iwasaki does not describe how the rail is held at isothermal
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