Appeal No. 2004-0672
Application No. 09/894,704
specification pages 10 and 12 as producing “a substantially flat
spray of water in a substantially vertical plane” as required by
rejected claim 56. Thus, the appellants’ own disclosure (1)
militates for the examiner’s position that the spray nozzles of
the Japanese reference are capable of producing a flat spray of
water in a substantially vertical plane as here claimed but (2)
militates against the appellants’ aforequoted contrary position.
Under these circumstances, we consider the examiner to have
properly shifted to the appellants the burden of persuasion vis-
à-vis their argued position. On the record of this appeal, the
appellants have failed to carry such burden.
Additionally, we observe that nozzles 45, 46 and 48 of
Yoshida are designed so that the direction and the pattern of
spray is adjustable (e.g., see lines 11-48 in column 14, the last
paragraph in column 17 and the first paragraph in column 18). In
view of this adjustability, it is apparent that these nozzles are
capable of being disposed in a vertical spray direction (e.g.,
see Figures 11 and 16) and that these nozzles are capable of
producing a spray pattern, at least a portion of which would be
in the form of a flat spray. It is our determination, therefore,
that the shower apparatus of Yoshida includes a plurality of
spray nozzles capable of producing “a substantially flat spray of
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