Appeal 2007-3992
Application 10/347,867
The problem with the Examiner's construction is that it does not
appear to be reasonable and the Examiner has not explained what disclosure
in the specification or in the art in general is consistent with a reading that so
strains the ordinary meaning of the term "intake end of said garniture
tongue." In the absence of evidence supporting the Examiner's position, we
find that the preponderance of the evidence supports the Appellant's
construction of the term.
Claim 1 recites that the intake end of the garniture tongue is
comprised of a high Ti-C alloy steel. We find that the intake end or
upstream part 32 of Labbe is not comprised of a high Ti-C steel, and that the
Examiner has not identified any reason to modify part 32 to contain or be
covered by a high Ti-C steel. Hence, the garniture tongue of Labbe, as
modified according to the Examiner's rejection, does not render the claimed
invention obvious. The other references on which the Examiner relies for
evidence of obviousness do not remedy this deficiency. Accordingly, the
rejection of claims 1-19 as obvious over the combined teachings of Labbe
and Frehn and the rejection of claims 20–29 as obvious over the combined
teachings of Labbe, Frehn, and Hakansson are REVERSED.
D. Summary
In view of the record and the foregoing considerations, it is:
ORDERED that the rejection of claims 1–19 under 35 U.S.C.
§ 103(a) in view of the combined teachings of Labbe and Frehn is
REVERSED;
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