Appeal No. 2004-1690
Application No. 10/223,901
Buehl, like appellants, is directed to a gas-permeable
radiator element that is attached to a plenum within a radiant
burner. However, as acknowledged by the examiner, the radiator
element of Buehl is not a metal foam, as presently claimed, but a
fiber composition. It is the examiner's position, however, that
it would have been obvious for one of ordinary skill in the art
to substitute the metal foam of Haack for the fiber composition
of Buehl. However, as emphasized by appellants, Haack is
directed to a heat exchanger that transfers heat via conduction
and convection, and does not comprise a burner element which
utilizes radiant heat transfer. As a result, we must agree with
appellants that Haack fails to provide the requisite suggestion
for modifying the radiator element of Buehl. As stated by
appellants, "Haack neither explicitly nor implicitly describes
combustion within a metal foam" (page 5 of principal brief, last
paragraph).
The examiner responds that "[i]t should be noted that the
language recited in the claims simply require [sic, requires]
'supporting combustion', which was interpreted as functional
language . . . it is only necessary that the combination be
capable of performing the function" (page 4 of Answer, last
paragraph). However, claim 1 on appeal specifically defines the
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