Appeal No. 2004-0804
Application No. 09/757,886
New Ground of Rejection
We enter the following new ground of rejection pursuant to
37 CFR § 1.196(b).
Claims 1, 2, 7, and 8 are rejected under 35 U.S.C. § 103(a)
as unpatentable over EP ’262.
Because we have determined that the subject matter of
appealed claim 3 would have been obvious to one of ordinary
skill in the art within the meaning of 35 U.S.C. § 103, it
necessarily follows that we must reach the same conclusion for
appealed claims 1 and 2, which are the base claims for dependent
claim 3. The same reasons supporting an obviousness
determination applies to appealed claim 7, because this claim
differs from appealed claim 1 only in the recitation of a
column, which is disclosed in EP ’262.
As to appealed claim 8, the distance by which a downcomer
extends above or below a tray is suggested as a result-effective
variable in EP ’262. (Page 5.) Accordingly, one of ordinary
skill in the art would have found it prima facie obvious based
on the prior art teachings as a whole to determine by routine
experimentation a workable or even optimum range of distances by
which the downcomers should extend through the tray, thus
arriving at an apparatus encompassed by appealed claim 8. In re
the appeal brief.
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