Appeal No. 2004-1037
Application No. 09/680,387
(e) a shell outlet for passage of a second fluid into the shell and exterior
of the tubes and a shell outlet for withdrawing a second fluid from the
shell, wherein the first and second fluid are passed either countercurrent,
co-current, or in multi-pass substantially parallel flow, and when the
fluids are at different temperatures, a transfer of heat occurs between the
fluids.
As evidence of unpatentability, the Examiner relies on the following
references:
Pettigrew 3,837,397 Sept. 24, 1974
McClintock 4,588,027 May 13, 1986
THE REJECTION
The Examiner rejected claims 11, 12, 15, 18 and 20 under 35 U.S.C. § 103(a)
as obvious over the combination of McClintock and Pettigrew. (Answer, pp. 3-4).
OPINION
Upon careful review of the respective positions advanced by Appellant and the
Examiner, we find ourselves in agreement with Appellant’s position in that the
Examiner has failed to carry the burden of establishing a prima facie case of
obviousness. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88 (Fed. Cir.
1984). Accordingly, we will not sustain the Examiner’s rejection. We will limit our
discussion to claim 11, the sole independent claim on appeal.
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