Appeal No. 2003-1379
Application No. 09/769,334
respective positions. This review leads us to conclude that the
examiner’s Section 103 rejection is well founded. Accordingly,
we affirm the examiner’s decision rejecting claims 1 through 9
under 35 U.S.C. § 103. However, pursuant to 37 CFR § 1.196(b)
(2002), we denominate our affirmance as including a new ground of
rejection since our rationale for affirming the examiner’s
Section 103 rejection is materially different from that proffered
by the examiner. Our reasons for this determination follow.
We find that Beuck teaches an aircraft having, inter alia, a
fuselage (2), an energy absorbing structure (5) forming a
compartment below the fuselage and fuel tanks (60) adjacent the
bottom part of the fuselage inside the compartment. See Figures
4 and 5, together with column 4, lines 40-52, column 6, lines 15-
33 and column 9, lines 11-19. We find that Beuck teaches (column
9, lines 12-17) that
these [fuel tanks] are preferably used as ballast or
trim tanks in view of safety regulations. Thus, the
tanks are empty upon take-off and landing, but fuel is
pumped into the tanks during flight to achieve a
desired trim. Furthermore, if necessary, the tanks may
be provided with other known safety measures, such as
quick drain valves... (Emphasis added).
The examiner recognizes that Beuck does not teach at least
partially filling the fuel tanks with an open cell foam. To
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