Appeal No. 2001-0299 8
Application No. 08/993,861
Thus, the shell 4, conical wall 36 and swirler device 14 comprise a "tubular swirl cup" as
recited in claim 7. In this regard, while claim 7 does require a step of "firstly swirling a
portion of said air in a first swirl direction into said swirl cup coaxially around said
injected fuel," there is nothing in this limitation which requires that the step of firstly
swirling be performed with structure which is part of the "tubular swirl cup." In that the
fuel nozzle 27 injects fuel into the opening formed in the conical wall 36, we consider
the fuel injection performed by Koch to be "into an upstream end of said swirl cup."
Appellants' statement on page 11 of the request that "[i]n Koch, air is discharged
firstly from the swirl device 18, and then the fuel is discharged from the nozzle 27"
appears to be correct. We see nothing in this fact, however, which is inconsistent with
the swirl device 18 swirling a portion of air in a first swirl direction "into said swirl cup
coaxially around said injected fuel" as called for in claim 7. While the swirl device 18
may begin swirling air before the valve 12 controlling supply of fuel to the corresponding
nozzle 27 is opened (see column 3, line 57, to column 4, line 1), once the valve 12 is
opened, the swirl device 18 swirls air coaxially around the injected fuel. In other words,
the air exiting the swirl device 18 travels coaxially around the injected fuel stream.
Appellants, on page 12 of the request, have alleged that the Board failed to
address the recitation of a “carburetor” in claim 11. We hold this argument to be
untimely as it was not set forth in appellants’ brief. Accordingly, it will not be considered
upon rehearing. See Schreiber, 128 F.3d at 1479, 44 USPQ2d at 1433 and Kroekel,
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