Appeal No. 2002-2082
Application No. 09/289,393 Page 8
downstream of the heating element. We do not agree with the
examiner's assertion (answer, page 3) that "formation of slits at
various positions surrounding the heating element is also a
matter of design choice since no criticality is mentioned in
doing so" for two reasons. First, the examiner's assertion is
misplaced as "criticality" is not the correct standard to be
applied. This is not a situation where the only difference
between the prior art and the claimed invention are dimensional
limitations which do not specify a device which performs and
opoerates any differently from the prior art. See Gardner v. TEC
Systems, Inc., 725 F.2d 1338, 1349, 220 USPQ 777,786 (Fed. Cir.
1994). Second, we find that appellants’ specification sets forth
(pages 21 and 22) that “[i]n the case of the flow rate sensor
employing the flow rate detecting device 14A constructed as
described above, no holes are provided upstream of the heating
element 4. Thus, even if dust contained in the fluid is
accumulated on the end portions of the walls of the holes, the
condition of flow of the fluid at a part, at which the flow rate
of the fluid is measured of the heating element 4 does not
change. Therefore, even if the flow rate sensor using this flow
rate detecting device 14A is applied to an intake air flow rate
sensor of an automotive internal combustion engine, the flow rate
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