Appeal No. 2003-0735
Application 09/238,859
which is the direct opposite of the claimed invention in which
the AOTF is regulated to a constant temperature value.
After careful review of the applied prior art references in
light of the arguments of record, we are in general agreement
with the Examiner’s position as stated in the Answer. At the
outset, we would point out that we do not find to be persuasive
Appellants’ assertion (Reply Brief, pages 2-4) that the Examiner,
by deleting in the rationale provided in the Answer a portion of
the statement of the line of reasoning expressed in the final
Office action (Paper No. 14), has made an impermissible new
ground of rejection. Our review of the record before us finds it
apparent that the portion of the reasoning deleted from the final
Office action applies specifically to the limitations in claim 9,
the obviousness rejection of which the Examiner has withdrawn.
In our view, the portion of the Examiner’s rationale carried over
from the final Office action to the Answer, which applies
specifically to the limitations of appealed claim 2, is a
restatement of the Examiner’s position as to claim 2, and not a
new rejection thereof.
As to the merits of the Examiner’s obviousness rejection of
representative claim 2, we find Appellants’ arguments to be
without merit. Initially, we find no basis in the disclosure of
Kemeny, and Appellants have pointed to none, for Appellants’
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