Appeal No. 1996-3826
Application 08/222,477
We have carefully considered all of appellant’s arguments and the evidence presented in the
specification and the Declaration by Appellant Gunnerman.9 Appellant submits the view of the
disclosure of Kawaai that “of the ‘85-70 weight percent of water and alcohol’, the water or alcohol
may comprise the majority constituent” and concludes that Kawaai does not “disclose an amount of
alcohol in applicant’s range” (brief, page 7). Thus, appellant points to the disclosure at pages 12-13 of
his specification as “specifically [indicating] the important role that alcohol content, in the amount
claimed, plays in contributing to the stability of the aqueous fuel emulsion; and stability is an obviously
important aspect of the aqueous fuel formulation” (id, pages 7-8). Appellant contends that such
disclosure in the specification “establishes the unexpected results obtained by controlling the alcohol
content” in the fuel (id., page 9). Appellant further contends that evidence of patentability is found in the
Gunnerman Declaration which he describes as “summarizing tests conducted to determine the effect of
varying the alcohol content of the fuel composition described and claimed” between the low end and
high end of the range set forth in appealed claim 1, that is, “about 2 to less than 20 vol.% alcohol” (id.;
see also Gunnerman Declaration, pages 1-2). Appellant further submits that the Kawaai fuel
composition is “described therein to be used by burning it in atomized form, probably in a burner” while
the claimed aqueous fuel is “capable of use in an internal combustion engine” (id., page 10). Appellant
further argues that Kawaai discloses “‘85-70 weight percent of water and alcohol’” and that “it is
impossible to tell from the [Kawaai] disclosure not only the amount of alcohol to use, but the ratio of
alcohol to water in the emulsion” and concludes that “the water and alcohol content . . . would be far
outside the range set forth in applicant’s claims as appropriate to achieve a stable fuel” (id., page 12).
We cannot subscribe to appellant’s position. The relevant disclosure of Kawaai is that the
stable oil-in-water type emulsified fuel contains “70-85% by weight of water, and alcohol if needed, as
a continuous phase” (emphasis supplied), which phrase, while different from the
statement “85-70 weight percent of water and alcohol” (emphasis supplied) argued by appellant, does
encompass appellant’s statement to some extent. However, we found above that the exemplification of
the optional use of alcohol as shown in Kawaai Example 2 established that alcohol would be used in
9 The declaration was submitted on August 11, 1995 (Paper No. 14).
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