Appeal No. 2002-1445
Application No. 09/280,775
Obviousness
We do not sustain the rejection of claims 1, 4 through 7, 9,
12 through 15, and 18 through 21 under 35 U.S.C. § 103 as being
unpatentable over Suzuki.
At the outset, we note that we earlier referred to certain
features in appellants' independent claims. A review of the
Suzuki translation indicates to us that one having ordinary skill
in the art would not have derived any suggestion therefrom as to
the specific plate and spacer materials now claimed. Suzuki is
silent on the matter of materials. The examiner has simply
failed to provide the requisite evidence in the rejection to
support a conclusion that the differences between the claimed
invention and the Suzuki heat exchanger (particular materials for
plates and spacers) are such that the subject matter as whole
would have been obvious to person having ordinary skill in the
art.5 Relative to the examiner's view (answer, page 6) of the
spacers of Suzuki being "inherently dielectric" (anticipation),
5 In the answer (page 6), we note the examiner's reliance
upon a Soviet Union document(CHAG). It is worthy of pointing out
that, where a reference is relied upon to support a rejection,
there would appear to be no excuse for not positively including
the reference in the statement of the rejection. See In re Hoch,
428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970).
6
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