Appeal No. 2003-0780
Application No. 08/642,962
surface] is a leak between the toilet tank and bowl," and the
conclusion following therefrom that, because of this, "the
practitioner would logically understand (determine) that water is
leaking from the water source," as being factually incorrect.
In support of this contention, appellant has provided
declarations under 37 CFR § 1.132 from Mr. Lloyd Luthringer and
Mr. Kirk Brewer (Paper Nos. 20 and 21) urging that, in normal
functioning and non-leaking toilets, it would have been expected
that residual post-flush drainage from the precleansing flush
required in LYSOL would continue for up to one to two minutes
after the flush and thereby provide a source of water flow other
than that coming from any leakage from the tank into the bowl.
As a result of such residual post-flush drainage and the
expectation that one cleaning the toilet would apply the LYSOL
cleaner to the bowl surface immediately after the pre-cleaning
flush and scrub as the instructions imply, both Mr. Luthringer
and Mr. Brewer have opined that a person would be ill-advised to
correlate any observed streaks in the swath of LYSOL cleaner on
the bowl surface to leakage, since any such streaks would more
like be the result of the residual post-flush drainage and
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