Appeal 2006-3386
Application 10/448,569
FIRST ISSUE
Appellant contends the Examiner erred in rejecting claims 3 and 4 as
anticipated by Chu, because Chu does not disclose using a first treatment to render
a gopher unconscious and using a second treatment, after the first, to kill the
gopher (Br. 6). The Examiner found that Chu teaches using both freezing air and
hot air from the same apparatus and that the hot air would render a gopher
unconscious and the cold air would then kill the gopher (Answer 3-4). The issue
before us is whether Appellant has shown that the Examiner erred in finding claims
3 and 4 anticipated by Chu.
FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. Chu discloses using a vortex tube to provide lethal temperatures to
destroy undesirable organisms such as insects, termites, mildews, or tumors in a
human body (Chu, col. 1, ll. 11-16).
2. Chu recognizes that rodents have a normal temperature range within
which they can survive and thrive and that temperatures appreciably outside of the
normal range are lethal especially if they are maintained for a long period of time
(Chu, col. 1, ll. 46-51).
3. Chu teaches that cold air can be used to cool down an enclosed
infestation area 19 to a sub-freezing lethal temperature for a long enough period to
exterminate objectionable organisms and hot air can be used to heat up an enclosed
4
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