Appeal 2006-2022
Application 10/092,320
standard applied during examination. Phillips v. AWH Corp., 415 F.3d
1303, 1317, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005).
From the foregoing and as best shown in Yamamoto’s Figures 3 and
4, the “U-form” of Yamamoto’s diaphragm (34) includes a “portion [of the
diaphragm] near the edge” that is not in contact with the partition plate (12)
(i.e., lower orifice plate). In fact, as shown in Figure 4, there are times
during the flexing of the diaphragm when “a portion [of Yamamoto’s
diaphragm (34)] near the edge” is neither in contact with the orifice member
(11) (i.e., upper orifice plate) nor the partition plate (12) (i.e., lower orifice
plate).
Thus, Yamamoto appears to anticipate at least Appellants’ claim 1.
Therefore, in response to this remand, the Examiner must determine,
and make of record the results of this determination, the propriety of
rejecting at least claim 1 under 35 U.S.C. § 102(e) as being unpatentable
over Yamamoto.
This remand to the Examiner pursuant to 37 C.F.R. § 41.50(a)(1)
(2006) is not made for further consideration of a rejection. Accordingly,
37 C.F.R. § 41.50(a)(2) (2006) does not apply.
CONCLUSION
In summary, we have reversed the § 103(a) rejection of claims 1-18
Yamamoto in view of Hein.
The Examiner’s decision is reversed and the application is remanded
to the Examiner for action consistent with our comments above.
REVERSED & REMANDED
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