Appeal No. 2006-0316
Application 10/428,930
[Citations omitted.]” Donaldson, 16 F.3d at 1195, 29 USPQ2d at 1850; see also Morris, 127
F.3d 1048, 1055-56, 44 USPQ2d 1023, 1028 (explaining Donaldson).
We find that the “corresponding structure” to the “plasma torch” specified in claim 2
disclosed in the written description in the specification is plasma torch 5 with nozzle 9 as shown
in specification FIGs. 1 and 2 and explained in the written description at pages 5-6 of the
specification. There it is disclosed that, as shown in FIG. 2,
[t]he nozzle 9 is mechanically fixed relative to the mouth of the conduit 10 through
which the plasma is ejected from the torch 5, at a distance determined so that the gas
ejected by the nozzle is between the preform on which the end of the plasma impinges
and the flame 12 of the latter when the torch is in operation. [Specification, page 6,
ll. 3-6.]
Considering now claims 2 and 9, interpreted above, compared to the teachings that one of
ordinary skill in this art would have found in Nath, we find with respect to claim 2 that the
examiner has not made a determination whether plasma torch 1 illustrated in Nath Figs. 1 and 2
as described at cols. 6-7 of the reference, is a structure that is “equivalent” for purposes of
section 112, paragraph 6, to the “corresponding structure” torch 5 having nozzle 9 to which
claim 2 is limited (see answer, e.g., pages 6-9 and page 16, second full paragraph, to page 17,
second full paragraph). We find that outer tubular element 9 and its tubular extension 19 with
end portion 20 bounding passage 12 into and through deposition chamber 6 of plasma torch 1
illustrated in Nath Figs. 1 and 2, which conducts a “shielding gas” (e.g., col. 6, ll. 33-36, 41-49
and 54-64), does not identically perform the function of “injecting a gas which is substantially
free of silica particles between the plasma torch and said preform in the area of said preform to
be heated” specified in claim 2, in substantially the same way, with substantially the same result.
Indeed, Nath explains that “outer tubular element 9 at least partially bounds a heating zone 16 in
which the annular plasma 2 is formed” and “[t]he enlarged diameter of the end portion 20 results
in reduction of speed of the gaseous medium flowing through the chamber 6 and thus an
improvement of the cooling action of such a gaseous medium” (col. 6, ll. 44-46 and 61-64; see
also col. 5, ll. 1-30). We find that Nath Fig. 1 would have disclosed to one of ordinary skill in
this art that the shielding gas indeed flows outside of the plasma sustaining intermediate gas and
the plasma. Thus, the written description and Fig. 1 of Nath would not have disclosed to one of
ordinary skill in this art that the “shielding gas” is injected “between the plasma torch and the
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