Appeal 2007-2193
Application 10/816,369
Regarding Appellants’ lack of motivation argument, Kuwahara
discloses that the Venturi effect occurs at passage “d,” which is formed
between the annular spout 9 and partition 13 (Kuwahara, col. 2, ll. 44-60;
Figure 2). Accordingly, as the Examiner indicates, the smooth shape is
critical at the exit orifice, not the entry orifice, of the annular spout 9
(Answer 12). Therefore, combining a rectangular entry orifice with
Kuwahara’s partition 8 in the vacuum cleaner would not disrupt the smooth
flow required for producing a Venturi effect at the exit orifice of the annular
spout 9 as argued by Appellants.
Moreover, Appellants have not persuaded us that using a rectangular
shape for the inlet orifice is significant (i.e., critical) to their invention, such
that it is not merely an obvious change in shape under In re Dailey, 357 F.2d
669, 149 USPQ 47 (CCPA 1966). First, the portion of the Specification
cited by Appellants, page 3, lines 13-25, as establishing the criticality of the
rectangular shape, does not establish that the rectangular shape is critical
(Br. 15). Rather, the cited portion indicates that the size of the entry surface,
not the shape, is critical to reduce resistance and air turbulence
(Specification 3:19-23).
Second, Appellants provide no factual comparison of a rectangular
shaped inlet orifice with inlet orifices of different shapes, such as a circular
shaped inlet orifice, to establish the alleged criticality of the inlet orifice
shape. Rather, Appellants rely on attorney arguments to establish the
criticality of the rectangular inlet orifice. Attorney arguments are not the
kind of factual evidence that is required to rebut a prima facie case of
obviousness. In re Geisler, 116 F.3d 1465, 1469-70, 43 USPQ2d 1362,
1365 (Fed. Cir. 1997).
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