Appeal Number 2006-2869
Application No. 10/385,520
1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA
1976).
The examiner's position (answer, page 5) is that
Perry does not specifically recite the claimed ranges
and proportions for the intermediate portion. However,
it should be noted that the only mention vaguely
resembling any criticality for the claimed ranges
and proportions in the entire disclosure is a single
sentence that states that the disclosed arrangement
minimizes the height of the burner in order to enhance
the size of the oven cavity. There appears to be no
mention of any criticality for the specific ranges and
proportions recited in the claims. As such, these
limitations are simply design modifications based on
spatial considerations and have no apparent criticality.
The examiner adds (answer, pages 5 and 6) that
It would have been obvious to one having ordinary skill
in the art at the time the invention was made to have
incorporated the claimed range into the invention
disclosed by Perry, since 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 are. In re Aller, 105
USPQ 233; In re Swain, 156 F.2d 239.
Appellants' position (brief, page 7) is that in Perry, there is no attempt to establish a low profile
gas burner. Appellants assert (brief, page 8) that “conventional wisdom would indicate that
holding the intermediate or rising section to a minimal length would create problems with a
reverse density driven flow and ‘popping’ of the gas inside the burner tube. The inventor’s have
looked past this and developed the low profile burner of the invention.” It is argued (brief, page
9) that
There is no suggestion or motivation in Perry that would
indicate the obviousness of providing the specifically
claimed vertical spaced relationship between in inlet
portion and the outlet portion of a gas burner assembly to
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