Appeal No. 2003-1788
Application No. 09/403,081
the majority, the burner means 16 described in Gitman must be
defined to include only a burner.
Contrary to the majority’s position, however, Gitman clearly
states that the burner means 16 includes “a preliminary burner 17
[corresponding to the claimed burner] which is connected to a
primary combustion chamber 101, which communicates with a
secondary combustion chamber 102....” See page 22, lines 10-22,
together with Figure 2. Gitman also teaches employing a
multiplicity of nozzles for feeding oxygen-containing gases at
the primary and secondary combustion chambers corresponding to
the claimed combustion reactor downstream from the preliminary
burner 17. See, e.g., pages 22 and 23 in conjunction with Figure
2. It follows that the examiner’s finding of anticipation
regarding the subject matter defined by claims 17, 18, 21, 23 and
24 under 35 U.S.C. § 102(b) is supported by substantial evidence.
Although the examiner has not established that the oxygen
containing gases described in Gitman is inherently fed at the
claimed velocity3, the majority ignores the fact that the
determination of the optimum velocity of oxygen-containing gases
in a known Claus sulfur process is well within the ambit of one
of ordinary skill in the art. In re Woodruff, 919 F.2d 1575,
1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990)(When the difference
between the claimed invention and the prior art is some variable
within the claims, the appellants must show that the particular
3 Although the velocity of an oxygen-containing gas may be
varied based on the pressure at which it is fed and the size of
the nozzle opening at which it is discharged, the examiner has
not referred to the pressure and/or the nozzle size to show that
the oxygen containing gas described in Gitman is necessarily fed
at the claimed velocity. See Ex parte Skinner, 2 USPQ2d 1788,
1789 (Bd. Pat. App. & Int. 1986)(Inherency “may not be
established by probabilities or possibilities. The mere fact
that a certain thing may result from a given set of circumstances
is not sufficient.”).
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