Appeal 2006-2776
Application 09/970,279
In addition to arguments made for the patentability of independent
claim 21, Appellants contend that there is a lack of motivation for combining
the teachings of Rice and Lemelson (Br. 8 and Reply Br. 8-9). Appellants
assert that Lemelson teaches away from such a modification as Lemelson
generally desires unrestrained flow of the reactants (Br. 9).
The additional issue before us with respect to the rejection of claim 27
is: Have Appellants’ assertions of a lack of motivation and a teaching away
established reversible error in the Examiner’s obviousness rejection of claim
27?
We answer this question in the negative and affirm the Examiner’s
obviousness rejection of claim 27.
In particular, we note that Rice discloses the use of shielding gas
ports. Providing Lemelson’s apparatus with such ports is attended by
expected advantages, including: (1) the use of such inlet ports near viewing
windows in the reaction apparatus prevents deposition of particulates
thereon (col. 3, ll. 62-68); and (2) the use of such inlet ports can be used in a
manner to minimize “spreading and turbulence of the reactant gas stream in
the reaction zone” (col. 4, ll. 33-36 and 45-63). Thus, one of ordinary skill
in the art would have been led to provide a shielding gas inlet port in
Lemelson with the reasonable expectation that either one or both of those
advantages as discussed by Rice could be predictably obtained for the
system of Lemelson.
As to the specific question of "teaching away," our reviewing court in
In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994)
stated:
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