Appeal No. 2005-2052
Application No. 09/996,842
Utilizing the unit 6 of De’Longhi in the manner taught by
Woolley would result in a heater with a fan that projects air
downwardly over the heat transferring surfaces of the radiator,
which is discharged at a predetermined point near the floor of
the room, thereby positively heating a maximum volume of room
air and also most effectively distributing heat uniformly
throughout the room. This would not destroy the objects of
De’Longhi, contrary to appellant’s assertion.
With regard to the aspect of a claim wherein the fan is
effective to cool the upper portions of the tubular units to
enhance thermal convection of the diathermal fluid within the
tubular radiator units, we agree with the examiner’s position
that this would be inherent. See the answer, pages 4, 5, and
12. The examiner provides a technical explanation that the air
flowing directly on and downwardly over the tubular units would
influence the temperature of the diathermal fluid contained
therein such that thermal convection is enhanced. In other
words, an effect that one of ordinary skill would appreciate.
On the otherhand, appellant provides mere attorney argument that
the effect on thermal convection depends on the factual
specifics such that the limitation is not met by merely
arranging the fan as suggested by the examiner. Brief, pages 6-
7. Mere attorney argument is not the kind of factual evidence
that can rebut the prima facie case of obviousness. See In re
Wood, 582 F.2d 638, 642, 199 USPQ 137, 140 (CCPA 1978); In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 368 (CCPA 1972)(“mere
lawyers’ arguments unsupported by factual evidence are
insufficient to establish unexpected results”).
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