Appeal 2006-1768
Application 10/389,327
Appellants counter that the Manual of Patent Examining Procedure
(MPEP) § 2144.05 (Rev. 3 August 2005) regarding the optimization of
ranges states that only result-effective variables may be optimized (Reply
Br. 6). Appellants argue that because the prior art used in the rejection does
not recognize burner tip area as a result-effective variable, the Examiner’s
contention regarding the obviousness of optimizing burner tip area is based
on impermissible hindsight (Reply Br. 7).
Appellants further counter that their discovery that burner tip area
may be increased without decreasing tip velocity is an unexpected result that
is different in kind, not merely different in degree (Reply Br. 7-8).
Appellants allege that surprisingly the expected decrease in tip velocity may
be mitigated by increasing the Flue Gas Recirculation effect (Reply Br. 8).
Appellants further argue that the Examiner oversimplifies the
combustion system in his application of fluid dynamic principles (Reply Br.
8). Appellants argue the Examiner fails to address how the volume would
be increased in response to an increase in burner port area so as to maintain a
constant tip velocity (Reply Br. 8). Appellants additionally reiterate the
aforenoted arguments made in their Brief.
We agree with the Examiner’s ultimate conclusion that claim 1 is
unpatentable over Fischer.
Appellants argue that the prior art did not recognize burner port area
as a result-effective variable. However, Fischer discloses that different size
burner ports are used to guarantee “desired flame form” and to provide
satisfactory control of the burner (Fischer 11). Thus, Fischer’s teaching
indicates a general desire in this art to manipulate burner port size, for
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