Appeal No. 2002-1827 Page 4
Application No. 09/428,594
be the case, there is no disclosure or teaching that the flow enhancement element is “in
sealed arrangement with the exhaust passages at the outlet plane to close the center
space,” as is required by all of the independent claims.
We find ourselves in agreement with the appellant that the rejection is defective,
and we therefore will not sustain it. From our perspective, the representation of the
McManus invention provided in Figures 2A and 2B does not establish that the center
space between the four exhaust gas passages is closed at all, much less that it is
closed at the plane in which the outlets of the gas passages are located. The
specification does not provide further information on this point and, in this regard, the
passage in lines 64-67 of column 3, to which the examiner refers for support, states
only that the passages are joined together, but is silent as to whether this is
accomplished in such a fashion as to close the center space. Furthermore, even if one
were to agree with the examiner’s conclusion that the center space must be closed,
which has not been supported by any evidence, there is no teaching in McManus that
the movable element closes it at the outlet plane of the exhaust gas passages. It could,
for example, be closed at some other point, such as where exhaust passages 16 enter
the upstream end of collector 11, or elsewhere between the upstream end of the
collector and the plane of the exhaust gas passage outlets. It therefore is mere
speculation to conclude on the basis of the evidence adduced by the examiner that this
requirement of the claim is anticipated by the reference.
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