Appeal No. 94-0605
Application 07/807,750
We are not persuaded that our decision is in error by
reason of our finding that “Gatward employs a ‘Denver cell’
... which is among the aerators listed in appellant’s
specification (page 13) as capable of generating a stable,
free draining foam” (original decision, page 19, lines 1-3;
see request, page 2). We observe that the examiner also found
that Gatward used a “Denver frothing cell” (answer, page 2),
and thus this question of fact is improperly raised by
appellant for the first time in his request. See, e.g., In re
Kroekel, 803 F.2d 705, 708-09, 231 USPQ 640, 642-43 (Fed. Cir.
1986). We note in passing that appellant has not established
in his request that the “Denver cell” used in Gatward does not
prepare a “surfactant-enriched stream,” which is “a stable-
free-draining foam,” and “a surfactant depleted stream,” which
is “surfactant-depleted liquid which is substantially free of
entrained bubbles,” as required by the method of appealed
claim 93 as we have construed that claim in our original
decision (pages 4-22).
We are also not convinced by appellant’s contention that
our decision is “inconsistent with the language as set forth
in the specific claims that define the air bubbles as having a
range of 1 mm and 5 mm in size” (request, page 2; emphasis
added) since this statement does not correspond to the
limitation “said bubbles being predominantly between about 1
and about 5 mm in diameter” (emphasis added) clearly stated in
appealed claim 93 on which we have decided this appeal
(original decision, pages 1-2 n.2).
Accordingly, we remain of the view that the claimed
processes as encompassed by appealed claims 93 through 138
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Last modified: November 3, 2007