Appeal Number 2006-2869
Application No. 10/385,520
was to make the vertical spacing between the inlet and outlet at least three inches in length, we
find that to meet the need for an enhanced oven cavity size, appellants went against the
conventional wisdom and provided a low profile gas burner that will allow for an enlarged oven
cavity while preventing reverse density driven flow.
Turning to Perry, we find that the reference is directed to a self cleaning oven (col. 1, line
13). Although Perry discloses a gas burner 26 having an inlet, unnumbered, and holes 26a, we
find Perry to be silent as to the size of the vertical relationship between the inlet and outlet
portions, and the examiner has not pointed to any teaching or disclosure in Perry that would
suggest the size of the vertical relationship between the inlet and outlet portions, or any teaching
or suggestion that the vertical relationship between the inlet and outlet portions could be
modified. The examiner is speculating in the assertion (answer, page 6) that it is inherent in
Perry that the pipes have a preferred range of measurements, because there is nothing in the
reference to support the assertion by the examiner. Because the independent claims recite
specific ranges and Perry is silent as to any sizes or ranges, we do not agree with the examiner
that the claimed limitations are simply design modifications based on spatial considerations and
have no apparent criticality. The disclosed limitations regarding the vertical relationship
between the inlet and outlet portions as recited in independent claims 1 and 8 are asserted to
overcome the problem of reverse density driven flow, while establishing an enlarged oven
cavity. In the absence of any convincing evidence that the particular claimed dimensions would
have been an obvious optimization of workable ranges that would have been within the level of
skill in the art, we are not convinced that a prima facie case of obviousness has been established.
Where the general conditions of a claim are disclosed in the prior art, it is not inventive to
discover the optimum or workable ranges by routine experimentation. See In re Swain et al.,
156 F.2d 239, 240, 70 USPQ 412, 413 (C.C.P.A. 1946). However, because Perry is silent as to
the size or proportions of the vertical relationship between the inlet and outlet portions, and
merely shows a gas burner without any ranges, dimensions, etc., we find that the prior art applied
by the examiner does not show the general conditions from which the optimum or workable
ranges could be determined. In addition, we find the examiner’s arguments regarding In re
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