Appeal No. 2002-2273 5
Application No. 09/363,688
substance from an inert substance source “to the mixer” so that the gas mixture is non-
flammable in air. First, because Schellhaas does not include a mixer for the reasons
noted above, it follows that Schellhaas cannot include a flow controller to control the
flow of phosphine or an inert substance “to the mixer.” Second, the examiner has not
explained, and it is not apparent to us, that sensor 17, either alone or in combination
with throttle valve 20, functions to control the gaseous mixture of phosphine and air
exiting the cartridge so that said mixture is “non-flammable in air.” This is so
notwithstanding the disclosure at column 6, lines 11-14, of Schellhaas to the effect that
the Schellhaas apparatus may be designed and operated such that the formation of an
ignitable mixture of phosphine gas can be prevented. This constitutes an additional
reason why we cannot sustain the examiner’s rejection of independent claim 11, or
claims 12-16, 44-46, 50 and 51 that depend either directly or indirectly from claim 11 as
being anticipated by Schellhaas.
As to the examiner’s rejection of claims 47-49 as being unpatentable over
Schellhaas, even if we were to agree with the examiner that it would have been obvious
to modify Schellhaas to include a flow meter to measure the flow rate of inert substance
flowing from the inert substance source to the mixer, the deficiencies of Schellhaas
discussed above would remain. Accordingly, we cannot sustain the rejection of claims
47-49 as being unpatentable over Schellhaas.
In light of the foregoing, the standing rejections of the appealed claims under
35 U.S.C. § 102(b) and 35 U.S.C. § 103(a) cannot be sustained.
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