Appeal No. 2005-1035
Application No. 09/800,153
pesticide distributing system, which comprises a port having the
previously described capability, rather than drawn to such a system
in combination with a fluid injection device pursuant to the
erroneous claim construction shared by the Appellant and the
Examiner.
Under these circumstances, we need not and will not assess the
merits of the Examiner's obviousness conclusion vis-á-vis providing
Jackson’s system with the injection device of Wing. This is
because such an assessment would be inappropriately advisory in
light of our finding that the independent claim on appeal does not
require an injection device of any kind.
As a consequence of the foregoing, the Examiner’s proposed
combination of Jackson and Wing, regardless of its propriety, is
not relevant to the question of whether the Examiner’s rejection
of claim 1 should be sustained. Instead, the resolution of this
question depends upon whether the Examiner has properly interpreted
claim 1 to be so broad in scope that the tubing members and
discharge openings thereof encompass Jackson’s “tubing members”
55, 52, 51 and “discharge openings" 53 as urged in the paragraph
bridging pages 8 and 9 of the answer.
In this regard, we appreciate the Examiner’s point that
Figure 1 of Jackson shows a plurality of “discharge openings” or
fogging nozzles 53. While the Appellant is correct that only
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