Appeal No. 2003-0609
Application No. 09/497,844
thickness. Precisely what would happen upon application of the
restricting sleeve 616 to such a straw member in terms of the
cross-sectional shape of the resulting flow restrictor and exit
port is, in our opinion, a matter of conjecture. Suffice it to say
that, at best, the claimed nozzle configuration might perhaps
result. However, as aptly noted by appellants on page 6 of the
brief, probabilities and possibilities are insufficient to
establish inherency. See In re Oelrich, 666 F.2d 578, 581, 212
USPQ 323, 326 (CCPA 1981). Accordingly, we cannot sustain the
examiner’s anticipation rejection of the appealed claims.
Consideration of the appealed claims under 35 U.S.C. § 103(a)
does not cause us to alter our view as to the patentability of the
claims over Stern, since the rejection is once again founded on the
notion that the claimed nozzle having both a flow restrictor and an
exit port of rectangular cross section would inherently result upon
applying the rectangular bore concept of Stern to the Figure 31A-
31B embodiment. For the reasons discussed above, we cannot accept
the examiner’s position that the claimed nozzle configuration would
inherently result.
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