Appeal No. 2005-0836 Page 6
Application No. 09/880,292
Drieskens, the Examiner, in fact, relies upon even more evidence than necessary with regard to
the fillers one of ordinary skill in the would have found to be obvious for use in the composition
of Torri. Appellants point out that “barytes”, one of the fillers listed as useful by Torri (Torri,
p. 1, col. 1, ll. 32-33), is, in fact, barium sulfate (Brief, p. 5, ll. 16-17). The only ingredient of the
claimed composition not suggested by Torri, therefore, is the nonionic surfactant. As found by
the Examiner, Melvold and Woodruff establish that it was known in the art to use nonionic
surfactants as emulsifiers in asphalt-in-water emulsions (Answer, p. 5; see also Woodruff, col. 2,
ll. 51-55; Melvold, col. 2, ll. 56-62).
We also determine that the Examiner’s conclusion is in conformance with the law. The
Examiner did not rely upon Woodruff and Melvold for the disclosures therein of specific
emulsion compositions. Rather, what the Examiner relied upon, and what these references
evince, is a general knowledge in the art that nonionic surfactants were conventionally utilized as
emulsifiers in asphalt-in-water emulsion compositions (Woodruff, col. 2, ll. 51-55; Melvold, col.
2, ll. 56-62). As we determined above, the Examiner’s finding with regard to the use of
nonionic emulsifiers is supported by disclosures in Woodruff and Melvold. It follows, therefore,
that those of ordinary skill in the art would have found it obvious to use nonionic emulsifiers for
their known purpose in the asphalt emulsion of Torri. We find neither a lack of factual support
nor a reversible error in the application of the law here.
Appellants argue that the Examiner has confused the fact that, in the claims of the instant
invention, the asphalt emulsion is emulsified using a clay emulsifier rather than a nonionic
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