Appeal No. 2004-1600
Application No. 09/964,149
2001). Thus, the burden is on the examiner to identify concrete
evidence in the record to support his conclusion that it would
have been obvious to modify the teachings of the cited
references to achieve the claimed invention. See, In re Kotzab,
217 F.3d 1365, 1370, 55 USPQ2d 1313, 1316-17 (Fed. Cir. 2000).
In the instant case, as explained by appellant on pages 3-4
of the brief, the finger seal means 12 of Honeycutt has a
particular shape important in Honeycutt to perform its
particular function. See Figure 1 of Honeycutt (particularly
finger seal means 12). The examiner has not explained how
changing the particular shape of the finger seal means 12 in
Honeycutt, to correspond with the shape disclosed in Burbridge,
would still allow for the finger seal means 12 in Honeycutt to
perform its function as required in Honeycutt (which is to
prevent cooling gas flow exiting from between augmentor casing
12 and augmentor liner 16 from leaking forwardly between
augmentor casing 14 and nozzle actuating cylindrical sleeve 59).
See column 3, lines 24-28 of Honeycutt.
Also, while the examiner states that incorporating such a
shape would serve to reduce actuation force, the examiner does
not support this conclusion with evidence sufficient to satisfy
the reasonable expectation of success standard. See, In re Merck
& Co., Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 379 (Fed. Cir.
1986). Also, the examiner never explains how the resultant
shape would continue to be able to function as required in
Honeycutt. Honeycutt’s finger seal means 12 is incorporated
between an augmentor duct and nozzle actuating sleeve of a jet
engine, whereas, the blade seal of Burbridge is to be employed
on the exterior of the aircraft at control surfaces 12 as shown
in Figure 1. In view of these two disparate teachings, it is
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