Appeal No. 2005-0584
Application No. 09/745,414 Page 5
pointed to any disclosure of Nicholson that reasonably ascribes
such a capability to the vacuum feed-through element as arranged
in Nicholson’s device.1
In addition, we further note that the examiner has not
established where Nicholson describes an injector located as
claimed. In this regard, the alternative pipework arrangements
referred to at column 9, lines 1-4 of Nicholson do not
specifically require an injector that is located between a
closure member and an outlet as appellants’ claim. Even if we
could agree with the examiner that selecting an injector and
locating the injector to feed gases directly into furnace section
B of Nicholson would be one such alternative pipework
arrangement, such a selection is not permissible under 35 U.S.C.
§ 102. While some picking and choosing may be entirely proper in
making an obviousness rejection under Section 103, it has no
place in making a Section 102 rejection for anticipation. See In
re Arkley, 455 F.2d 586, 587-88, 172 USPQ 524, 526 (CCPA 1972).
1 While the examiner maintains that claim 10 does not set
forth a size limit for the preform, we note that claim 10 does
require that the inlet be sufficiently sized for passing a
preform body that is of a type useful for drawing fiber
therefrom.
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