Appeal 2007-1941
Application 10/363,159
1 addition to the copolymer and rubberized compound in any amount and,
2 more particularly, an amount of “at least less than 50% asphalt. Fujikawa,
3 93 F.3d at 1570, 39 USPQ2d at 1904; Ruschig, 379 F.2d at 994-95, 154
4 USPQ at 122.
5 Applicant also relies on the portions of the specification which
6 describe the traditional prior art methods of repairing roadways, the need for
7 a more cost effective method for repairing roads, and the asserted benefits of
8 the invention. The import of the cited sections is that the composition and
9 method may be used to repair asphalt and other surfaces instead of the
10 conventional techniques. We see nothing in those sections which would
11 inform one skilled in the art to include asphalt in addition to the required
12 copolymer and rubberized compound in any amount and, in particular, a
13 non-predominate amount.2
14 Looking to the cited portions of the specification, including (1) the
15 discussion of conventional asphalt repair techniques using mixtures which
16 include asphalt in addition to other materials (Spec. p. 3, l. 11 - p. 4, l. 21),
17 (2) applicant’s six preferred embodiments none of which include asphalt,
18 and (3) the asserted benefits of the invention over the conventional
19 techniques of repairing asphalt (Spec. p. 21, l. 1 - 23, l. 15), we conclude that
20 the examiner was correct in holding (Examiner’s Answer, p. 5) that the
21 specification would guide one skilled in the art away from including asphalt
22 in any amount in the mixture with the copolymer and rubberized compound.
23 Indeed, we note that applicant argued that the invention did not use asphalt
24 and that the lack of the need to compact asphalt was said to be an advantage
2 We have considered only those arguments made before us in coming
to our decision. Arguments not made are waived. See 37 C.F.R. § 41.37(c)
(1) (vii) (2004).
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