Appeal No. 2004-0118 Page 5
Application No. 09/214,663
ordinary skill in the art would consider them to extend across at least a substantial part
of the width of the tank in order to perform the designated function. Such being the
case, at least the ends of both baffles 13 also would appear to meet the limitation of
being “in the region of the weld seam.”
The rejection of claim 1 is sustained. In view of the fact that the appellant has
chosen to have claims 4, 8, 9, 12 and 15 stand or fall with claim 1 (Corrected Appeal
Brief, page 5), we also will sustain the rejection of these claims.
Claim 2 adds to claim 1 the requirement that the spacers “are integrally formed
on the upper plastic shell and/or the lower plastic shell.” As the appellant has argued,
Luigi does not disclose that the spacers are so formed, and we therefore find Luigi not
to be anticipatory of the subject matter recited in claim 2. This being the case, the
rejection of claim 2 cannot be sustained. We are not persuaded otherwise by the
reasoning presented by the examiner on page 3 of the Answer.
We reach the same conclusion with regard to claim 3, which states that the
spacers “are designed as separate components which can be inserted into the plastic
shells before these are welded together,” for while it would appear from the explanation
on page 5 that the spacers are in place before the shells are welded together, Luigi is
silent as to whether the spacers are separate components. We further note that the
examiner has not commented on the appellant’s argument on this matter in the Answer.
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