Appeal No. 2005-1035
Application No. 09/800,153
shows that none of these tubes 52 extend through a building wall as
required by appealed claim 1.
For the reasons set forth above, it cannot be gainsaid
that the Examiner has erroneously determined that the claim 1
requirements involving tubing members and discharge openings are
satisfied by the tubes and nozzles of Jackson’s fumigation system.
Significantly, the Examiner has not advanced on the record of this
appeal any position as to whether it would have been obvious to
modify patentee’s system so as to result in the arrangement of
tubing members and discharge openings required by claim 1.
We are compelled by these circumstances to reverse the
Examiner’s rejection of independent claim 1 and of dependent claims
2-5, 7 and 8 as being unpatentable over Jackson in view of Wing.
Because the other rejections before us do not cure the previously
discussed infirmities of the Examiner’s position, we are also
compelled to reverse the rejection of claim 9 based on Jackson,
Wing and Hill, the rejection of claim 10 based on Jackson, Wing and
Cann, the rejection of claim 11 based on Jackson, Wing, Cann and
Hill, as well as the rejection of claim 12 based on Jackson, Wing
and Konieczynski.
In summary, we have not sustained any of the rejections
advanced by the Examiner on this appeal.
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