Appeal No. 96-2058
Application No. 08/147,090
We refer to the brief and to the answer for a complete
exposition of the opposing viewpoints expressed by the
appellant and the examiner concerning the above noted
rejections.
OPINION
For the reasons set forth in the answer and below, we
will sustain each of the rejections before us on this appeal.
As background, an affidavit under 37 CFR § 1.131 was
filed by the appellant in an attempt to antedate the Gorelick
patent. However, the examiner considers this affidavit to be
ineffective on the grounds that the appellant and Gorelick are
claiming the same invention. On this appeal, it is the
appellant's fundamental position that his claimed method and
patentees' claimed method are not the same allegedly because
the "at least a partial vacuum" feature of the appealed claims
is not practiced in the method defined by the patent claims.
In rebuttal, the examiner contends that the vapor venting
feature embraced by Gorelick's method claims would inherently
produce at least a partial vacuum on the surface area of the
water undergoing treatment as required by the appellant's
claims.
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