Appeal No. 1999-0978 Page 6
Application No. 08/533,944
head is removed from the cooling agent upon obtaining a specified temperature in the range of 450-550
°C. While Iwasaki indicates that the cooling stop temperature shows a strong correlation with
hardness, it is only one factor (page 11, lines 21-23). The initial differential heating, differences in
composition, and differences in cooling agent have not been accounted for by the Examiner.
The Examiner does not make any finding of fact that Moser describes or suggests removing the
rail head from the cooling agent upon obtaining a particular temperature within the range of 450-550
°C. Because the Examiner has failed to provide evidence to the contrary, we agree with Appellants
that an essential limitation recited in claim 6 is missing from the reference combination (Brief, page 7).
Iwasaki uses a mist or air cooling agent and therefore does not “immerse” the rail head as
recited in claim 6. The Examiner relied upon Moser as evidence that cooling a rail head in a cooling
agent containing water and synthetic cooling medium additive was conventional and a recognized
equivalent to the cooling method of Iwasaki. Moser utilizes rolling heat and therefore is hot throughout
the rail at the start of the cooling process (page 2, lines 33-36). In view of the fact that, in Iwasaki,
only the surface of the rail head is heated, it is not clear that one of ordinary skill in the art would have
substituted a bath for the mist or air of Iwasaki. We note that the overlap in cooling rates described by
the two references is not meaningful in light of the different heat profiles. The use of the same cooling
agent system would result in a faster cooling rate in a surface only heated rail than in a entirely hot rail.
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