Appeal 2006-1768
Application 10/389,327
having a plurality of main ports in an external surface of said burner tip
such that “the number and dimensions of said main ports in said external
surface being such that the total area of the main ports in said external
surface is at least 1 square inch per million (MM) Btu/hr burner capacity.”
The Examiner rejected claim 1 under § 103(a) over Fischer. The
Examiner indicated that Fischer discloses a “method and apparatus for a
burner” having all the limitations in claim 1, except for the “claimed total
area of the main ports.” (Answer 5). However, the Examiner, citing to In re
Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), concluded that
it would have been obvious to have incorporated the claimed area into
Fischer’s burner because “it has been held that where the general conditions
of a claim are disclosed in the prior art, discovering the optimum or
workable ranges involves only routine skill in the art.” (Answer 5).
Appellants argue that for the Aller holding to be applicable, Fischer
would be required to provide some teaching of the relevant parameters used
in burner tip design (Br. 9). Appellants allege that absent a teaching of
burner tip parameters, Appellants’ claims cannot merely represent an
adjustment of the relevant parameters as was found to exist in Aller (Br. 9).
Appellants cite to Ex parte Sullivan, 2003 WL 23014513 (Bd. Pat. App. &
Interf.), a non-precedential Board decision, for support that Aller is not
applicable to the facts of the present appeal (Br. 9-10).
Citing to paragraph 33 of their Specification, Appellants further argue
unexpected results. Appellants allege that rather than the tip velocity
“intuitively” decreasing upon increasing the burner tip area, unexpectedly
the velocity drop is mitigated “by the fact that raising tip flow area raises
FGR [Flue Gas Recirculation]” (Br. 10). Appellants argue that this allegedly
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