Appeal No. 2006-1784 Παγε 6
Application No. 10/668,819
The examiner is of the opinion that :
. . . appellant's claims recite a "closed position" of the valve,
where there is no fluid communication between the valve
plug flow passage, and the inlet and outlet ports of the valve
body. Here, a "closed position" appears to be contradicted
by the geometry of the claimed invention taken with the
description thereof in the specification [answer at page 6].
In essence, it is the examiner's view that there is fluid communication with the
valve body outlet and the plug flow passage in the closed position depicted in Figure 2.
Firstly, we agree with the appellant that claim 1 does not require that the plug
fluid passage is not in fluid communication with the valve body fluid outlet but rather that
there is no fluid communication with the outlet and the inlet of the valve body. There is
clearly no fluid communication between the plug body and the valve body inlet in Figure
2.
In any case, the examiner has not met his burden as he has failed to discuss any
of the above-listed Wands factors. This is so even though the examiner has directed
our attention to the Stark reference because the examiner has not addressed the Stark
reference in regard to the issue of under experimentation. As such, the examiner has
failed to establish that undue experimentation would have been required to make and
use the invention.
The rejection is not sustained.
We turn next to the examiner's rejection of claims 1 to 3 and 5 to 16 under
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