Appeal No. 2004-1481
Application No. 09/726,659
would have had a reasonable expectation of success reconfiguring
the system of Neoh for use with the SOG of On. See In re Vaeck,
947 F.2d 488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991); In re
O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681 (Fed. Cir.
1988).
Appellant argues that Neoh “teaches away” from the recitation
in claims 6 and 9 of a pressurized SOG bottle by teaching a pump
(Brief, page 10). This argument is not persuasive for reasons
noted by the examiner (Answer, page 14), namely that On teaches the
use of pressurized gases as an alternative to the pumping system of
Neoh.
Appellant argues that the claims exclude backing plates while
Neoh teaches that a backing plate is critical (Brief, page 10).
This argument is not well taken since the claims rejected under
section 103(a) do not exclude backing plates (Answer, page 14).
Appellant argues, with respect to claim 6 on appeal, that
neither Neoh nor On suggest the use of nitrogen as a pressurized
gas (Brief, page 11). This argument is not persuasive since the
examiner has stated that the prior art use of an inert gas such as
helium would have suggested the use of other inert gases such as
nitrogen (Answer, pages 14-15). Appellant has not contested this
statement by the examiner. Additionally, we note that On
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