wastewater would increase the rate of oxidation.” See Answer, page 7. Appellants
have neither traversed the examiner’s assertion nor challenged the correctness of
such assertion. Accordingly, we accept the examiner’s statement as a fact.
Notwithstanding these findings, the Chemical Abstracts 102:172028f reference
however, does not disclose a pH of 7 to 9 as required by claim 1 or a starting pH of
12 as required by claim 3. The examiner instead relies on the disclosure of
1
Vakulenko which suggests the use of neutral or basic media for the decomposition of
nitrophenol by ozone, since the process slows in acid media. See Answer, page 9.
However, the Vakulenko reference is not included in the examiner’s rejection. It is
well settled that, “[w]here a reference is relied on to support a rejection, whether
or not in a ‘minor capacity,’ there would appear to be no excuse for not positively
including the reference in the statement of rejection.” In re Hoch , 428 F.2d
1341, 1342 n.3, 166 USPQ 406, 407, n.3 (CCPA 1970). Furthermore, it is
unclear whether the omission from the rejection is inadvertent, or constitutes a new
ground of rejection by the examiner. In either event, the examiner has not complied
with the requirements of MPEP §1208(A)(9)(10), 7th ed., Revision 1, Feb. 2000.
Moreover, the requirement of claim 1 that the amount of ozone is sufficient to
virtually completely destroy said aromatic nitro compounds “down to inorganic
components” is not adequately addressed by either the examiner or appellants. The
examiner has not explained why the use of additional ozone in the process of Chemical
Abstracts 102:172028f would result in complete destruction of the nitro
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