Appeal 2006-1768
Application 10/389,327
unexpected result is “different in kind not merely different in degree” such
that the discovery of an optimum or workable range imparts patentability to
the claims (Br. 10).
Appellants also argue that there is no motivation to increase the
burner tip area because doing so would be expected to decrease the tip
velocity and result in operational instability of the burner (Br. 11).
Appellants argue that using their claimed burner tip area results in a burner
with no decrease in burner tip velocity due to the unexpected increase in
Flue Gas Recirculation (FGR) (Br. 11). Appellants contend that any
modification of the prior art to include Appellants’ claimed burner tip area
would require impermissible hindsight (Br. 11).
Appellants argue further that “[w]hen the prior art has not recognized
the result effective capability of a particular invention parameter, no
expectation would exist that optimizing that parameter would be successful”
(Br. 11).
The Examiner responds that the facts of Aller may be reconciled with
the factual scenario of the present appeal (Answer 8). As temperature and
concentration are factors that affect the chemical process in Aller, nozzle
shape and area similarly are factors that affect fluid flow in burner design
(Answer 8). The Examiner concludes that “to provide the most effective
nozzle and ports [for a burner] a skilled artisan needs to discover the
optimum shape and area to attain the desired effect” (Answer 8).
The Examiner further contends that the main focus of Appellants’
invention is the drawing of flue gases such that varying the shape and area of
the nozzle and ports to affect flow naturally follows (Answer 8). The
Examiner finds that Appellants merely adhere to a basic principle of fluid
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