Appeal No. 2001-0220
Application No. 09/244,044
anticipated by Schmidt, whereas claims 30 and 31 stand rejected
under 35 U.S.C. § 102(b) as being anticipated by each of
Soofi '175 and Soofi '667. In addition, claim 32 stands rejected
under 35 U.S.C. § 103(a) as being unpatentable over each of
Soofi '667, Soofi '175 and Schmidt.
We will not sustain the examiner's rejection of claims 13,
15-19 and 24 under § 102 over Schmidt. We do not subscribe to
the examiner's position that:
[T]he requirement that the dams extend upwardly to 40%
to 60% of the normal operating level of the tundish, is
a limitation dealing with the use of the claimed
apparatus, and it has been well settled that the manner
or method of use of an apparatus cannot be relied upon
to further limit claims to the apparatus itself [page 3
of Answer, second paragraph].
In our view, the Morales Declaration submitted by appellant
establishes on this record that the normal maximum operating
level of molten steel in a tundish is readily understood by one
of ordinary skill in the art to be a predetermined level for any
particular tundish design (see paragraph 3 of Declaration).
Accordingly, "[e]ven though the normal maximum operating level of
molten steel in a tundish varies from tundish to tundish" (id.),
we are satisfied that appealed claim 13 positively defines a
tundish comprising a dam having the recited structural
relationship regarding the height of the dam. Accordingly, we
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