Appeal No. 2003-1968 Page 4
Application No. 09/327,963
hydrocarbon liquid located above a gas distribution grid. Chang
discloses that a plurality of throat and cone gas injectors are
located in the distribution plate. See drawing figures 1-10 of
Chang.
According to the examiner (answer, page 3):
[i]t would have been obvious to one of ordinary
skill in the art at the time the invention was made to
use the distributor plate of Chang in the apparatus of
Jenkins as one would be motivated to look toward any
known distribution plate located below a fluidized bed
and above a non-particle space as functional
equivalents.
As part of meeting the initial burden of establishing a
prima facie case of obviousness, the examiner must determine
whether the differences between the subject matter of the claims
and the prior art “are such that the subject matter as a whole
would have been obvious at the time the invention was made to a
person having ordinary skill in the art” (emphasis added).
35 U.S.C. § 103(a)(1999); Graham v. John Deere Co., 383 U.S. 1,
14, 148 USPQ 459, 465 (1966).
Here, as pointed out by the appellants in the brief, the
examiner’s alleged “functional equivalence” assertion does not
satisfactorily explain why one of ordinary skill in the art would
have employed the teachings of Chang concerning a particular grid
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