Appeal No. 1999-1803
Application No. 08/968,845
of terminal venting” [column 4, lines 60-62]. Appellants argue that the disclosure by Wisner
to contain refrigerant cannot possibly mean to sealingly contain the refrigerant. Appellants
point to the holes in Wisner as evidence that the device of Wisner does not sealingly
contain the refrigerant [brief, pages 5-6].
The examiner responds that appellants admitted that the power cable sealingly
engaging the fence to seal the cavity defined by the fence was well known in the art. The
examiner again states that “it would have been within the level of ordinary skill in the art to
sealingly engage the power cable to the fence to seal the cavity to enhance the
containment of refrigerant in case of terminal venting” [answer, page 5]. Appellants
respond that they have not admitted that the power cable sealingly engaging the fence to
seal the cavity defined by the fence was well known. Appellants also respond that the
external shield of Wisner cannot sealingly contain any refrigerant [reply brief].
We agree with the position argued by appellants. Based on appellants’ brief, they
have elected to let this appeal be decided on the very narrow question of whether the
external shield of Wisner sealingly contains refrigerant. The examiner’s position that it
would have been obvious or common sense for Wisner to have this feature is based on
mere speculation by the examiner. There is nothing within the teachings of Wisner to
suggest that this feature is necessary, desirable or even practical. The fact that the shield
of Wisner has holes through which a refrigerant would likely leak certainly suggests that a
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