Appeal No. 2000-0027 Page 14
Application No. 09/072,190
rejection is the examiner's view that the above noted
modifications of Gaudio would result in a method which
corresponds to the method recited in claim 5 in all respects.
The appellant argues (brief, pp. 6-8) that Gaudio does
not disclose step (d) of claim 5 (mixing an emulsifier to the
rejuvenating oil, granules and aggregate). We agree. While
Gaudio does teach the step of mixing a water-based emulsion
type rejuvenator (e.g., "Reclaimite") with the particulated3
asphalt (i.e., granules) and crushed roughage (i.e.,
aggregate), Gaudio does not teach or suggest the step of
mixing an emulsifier to an already mixed mixture of
rejuvenating oil, granules and aggregate. Thus, the examiner
has failed to establish that the claimed subject matter of
claim 5 would have been obvious at the time the invention was
made to a person having ordinary skill in the art.
2(...continued)
panel of the Board.
3Such a water-based emulsion type rejuvenator would
inherently include a rejuvenating oil, water and an
emulsifier. Note page 8, lines 5-6, of the brief wherein the
appellant admits an emulsifier is present in Reclamite.
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