Appeal No. 1996-3826
Application 08/222,477
method or process of using that compound or composition in accordance with the provisions of
35 U.S.C. 100(b) and 101.”).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in Kawaai with appellant’s countervailing evidence of and
argument for nonobviousness and conclude that the claimed invention encompassed by appealed
claim 1 would have been obvious as a matter of law under 35 U.S.C. § 103.
We consider together the grounds of rejection of claims 2, 6, 13, 24 and 36 and of claims 33
and 43, both based on Kawaai in view of Dubin (see Office action of June 1, 1995 (Paper No. 11,
page 2-5 and 6-7); final rejection of October 24, 1995 (Paper No. 15; pages 6-7); answer, pages 5 to
9 and 9-10). With respect to these claims, the examiner finds that Kawaai does not disclose the use of
a lubricity enhancer (claim 2) or an alkylphenolethoxylate nonionic surfactant (claim 6) in the aqueous
fuels thereof. The examiner further finds that the reference would have suggested the range of “about 40
to about 60% water” (claim 2); that the claimed methods of preparing aqueous fuels (claims 13, 24 and
36) is different than the methods shown in Kawaai; and that the aqueous fuel compositions of Kawaai
are identical or substantially identical to the claimed aqueous fuels prepared by the claimed methods
(claims 33 and 43). The examiner finds that the combined teachings of Kawaai and Dubin would have
reasonably suggested to one of ordinary skill in this art that these differences would be modifications that
would reasonable be expected to result in stable oil-in-water type emulsified fuels and methods of
preparing such fuels, which can be spray combusted.
We agree with the examiner. We have reviewed the teachings of Kawaai above and find here
that the teachings of this reference differ from the claimed aqueous fuel compositions and methods of
preparing the same encompassed by the appealed claims we consider here, as pointed out by the
examiner. We find that Dubin (e.g., col. 3, line 11 to col. 4, line 29, col. 4, line 66, to col. 8, line 54)
discloses stable oil-in-water type emulsified fuels for “combustion turbine” engines which contain from
about 60% to about 90% by weight of water (e.g., col. 4, lines 5-15) and an emulsification system
containing a nonionic surfactant, that can be a nonionic alkylphenolethoxylate (e.g., col. 5, lines 41-43),
in similar manner to the stable oil-in-water type emulsified fuels disclosed in Kawaai. Indeed, we found
above (see supra page 7) that while Kawaai discloses that the aqueous fuels can have “70-85% by
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