Appeal No. 2005-1035
Application No. 09/800,153
one nozzle 53 is associated with each tube 51, the Examiner has
correctly pointed out that Figure 1 of Jackson shows the plurality
of nozzles 53 (as well as the tubes 51 associated therewith) are
“spaced along” tubes 52. Viewed from this perspective, the
Examiner believes that the claim 1 requirements involving tubing
members and discharge openings spaced along the tubing members are
satisfied by the aforementioned tubes and nozzles shown in Figure 1
of Jackson.
The deficiency of the Examiner’s analysis is that it fails to
account for the claim 1 requirement “each tubing member extending
through at l[e]ast one wall of the building.” As clearly shown in
Figure 1 of patentee’s drawing, the only “tubing member” which
extends through a building wall is tube 51 (which extends through
the upper tie beam 17 of building wall 13). However, these tubes
51 unquestionably fail to satisfy the claim 1 requirements under
consideration because each tube 51 includes only a single fogging
nozzle 53 at the end thereof (see Figure 1 and lines 61-62 in
column 3). Stated otherwise, patentee's tubes 51 meet the claim 1
limitation "extending through at l[e]ast one wall of the building"
but fail to satisfy the claim 1 requirement “having fluid discharge
openings spaced along said tubing members.” On the other hand,
while this last mentioned requirement may be satisfied by Jackson’s
tubes 52 as noted by the Examiner, Figure 1 of the patent clearly
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