Appeal No. 2002-2082
Application No. 09/289,393 Page 9
detecting characteristics of the flow rate sensor does not vary.
Consequently, the detecting characteristics of the flow rate
sensor are stably maintained over a long time period.” Thus, we
find from appellants’ disclosure the benefit derived from having
no holes upstream of the heating element 4. The limitation
regarding having no holes upstream of the heating element is a
structural limitation that should have been given weight by the
examiner. The examiner's unsupported, conclusionary, statement
regarding obvious design choice is not a substitute for evidence.
As the examiner has not pointed to any teaching or suggestion in
the prior art that would have suggested having no holes upstream
of the heater element, we find that the examiner has failed to
establish a prima facie case of obviousness of independent claim
5, and claims 6 and 7, dependent therefrom. Accordingly, the
rejection of claims 5-7 under 35 U.S.C. § 103(a) is reversed.
We turn next to independent claim 9. The claim requires
that a plurality of holes are provided at locations upstream and
downstream of the heating element, and that the holes provided
upstream of the heating element are spaced further from the
heating element than the holes downstream of the heating element.
Appellants asserts (brief, page 9) that neither Nagata nor
Morimasa teach or suggest this limitation, and that the
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