Appeal No. 2000-0027 Page 16
Application No. 09/072,190
The examiner determined (answer, p. 7) that Gaudio
teaches in Example 1, a pavement and patch material that
appears to meet the limitations of claim 12. The examiner
noted that from the disclosure in column 5, lines 8-20, that
"Reclaimite" in Example 1 would necessarily include an
emulsifier.
The appellant argues (brief, p. 8) that claim 12 is
allowable for the reasons provided with regard to claim 5. We
do not agree. Claim 12 does not require the emulsifier to be
added (i.e., mixed) to the combined material mixture of
granules, aggregate and rejuvenating oil as recited in claim
5. Thus, the appellant's argument is not commensurate in
scope with claim 12. Clearly, the pavement and patch material
disclosed by Gaudio in Example 1 includes recycled asphalt
roof waste, aggregate and "Reclaimite" (a solution of water,
rejuvenating oil and an emulsifier). 4
4We note that a disclosure that anticipates under 35
U.S.C. § 102 also renders the claim unpatentable under 35
U.S.C. § 103, for "anticipation is the epitome of
obviousness." Jones v. Hardy, 727 F.2d 1524, 1529, 220 USPQ
1021, 1025 (Fed. Cir. 1984). See also In re Fracalossi, 681
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