Appeal 2006-2776
Application 09/970,279
A reference may be said to teach away when a person of
ordinary skill, upon [examining] the reference, would be
discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was
taken by the applicant.
Here, Lemelson does not serve to teach away from the provision of a
shielding gas port as argued. The inlet reactant flows in Lemelson are taught
as being generally directed toward each other and then the combined flows
are directed toward an exhaust opening (col. 11, l. 61-col. 12, l. 17 and Fig.
11). Thus, Appellants’ argument to the contrary is not persuasive (Br. 9).
Moreover, we have no doubt that Lemelson would be concerned with
preventing reactant materials from depositing on any viewing or laser
openings provided in the reaction apparatus as taught by Rice to be a benefit
in providing shielding gas inlet ports. Indeed, Lemelson teaches the use of
shielding gas inlets to shield the beam from the surrounding atmosphere and
for cooling purposes (col. 8, l. 55 - col. 9, l. 49). Concerning Appellants’
argument in the Reply Brief to the effect that the figures 8 and 9
embodiments of Lemelson have nothing to do with combining reaction
streams, we note that Lemelson teaches that the beam and fluid flow
arrangements of Figures 7-10 can be applied to any of the apparatuses
described in Lemelson used for reacting solids, liquids, or gases (col. 9, ll.
43-49).
Thus, we find that the applied references furnish facts which, on
balance, support the Examiner’s obviousness contention regarding the
proposed modification of Lemelson. Lemelson does not serve as a teaching
away from the claimed subject matter as Appellants maintain. In this regard,
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