Appeal No. 2002-0011 Page 7
Application No. 09/179,643
that the examiner relied on impermissible hindsight in reaching his obviousness
determination.
Additionally, the examiner stated (final rejection, p. 2; answer, p. 5) that it was
well known in the art of rotating piston internal combustion engines of the type shown
by Faulman and Harris that the number of blades on the central rotor, the number of
turning valves, the number of cut-outs on the turning valves, the relative diameters of
the rotor and the turning valves, inter alia, may be varied depending on the desired
number of combustions per revolution and therefore the desired power output.
However, as set forth in In re Lee, supra, when an examiner relies on general
knowledge to negate patentability, that knowledge must be articulated and placed on
the record. In this case, the prior art of record only specifically establishes that the
number of turning valves may be varied (Faulman, page 2, lines 19-25). Thus, with
regard to the claimed subject matter the examiner has not provided any evidence that
the relative diameters of Faulman's turning valves (i.e., reaction resistance members
42) may be varied so as to permit their rotation about an axis substantially aligned with
the inner wall surface of Faulman's stator. Furthermore, even if the prior art suggested
modifying Faulman's rotary motor so that each reaction resistance member 42 (i.e.,
turning valve) had only one cut-out, such would not require the axis of rotation of
Faulman's reaction resistance members to be moved since the axis of rotation of
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