Appeal No. 2001-2488
Application No. 09/368,455
transfer fins to result in an assemblage with improved thermal
fatigue life with the elimination of cracking and splitting
(Answer, page 8). The examiner takes the additional position
that one of ordinary skill in the art “would recognize the
potential of thermal fatigue in any counter-current heat
exchanger, as such fatigue is inherent in said counter-current
heat exchangers.” Id., emphasis added. However, the examiner
has not provided any evidentiary support on this record for this
additional position. See In re Lee, 277 F.3d 1338, 1343, 61
USPQ2d 1430, 1434 (Fed. Cir. 2002)(“This factual question of
motivation is material to patentability, and could not be
resolved on subjective belief and unknown authority.”).
Furthermore, the examiner has not explained how it would have
been determined that the assemblage of Lesieur had problems with
thermal fatigue when Parker fails to disclose or suggest any
operating temperatures which would produce thermal fatigue, even
in gas turbine assemblages.
For the foregoing reasons, we determine that the examiner
has not established a convincing reason or motivation to combine
the references as proposed. Accordingly, we determine that prima
facie obviousness has not been established by the reference
evidence and the examiner’s rejection under 35 U.S.C. § 103(a)
cannot be sustained.
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