Appeal No. 1996-3826
Application 08/222,477
in the would not have been discouraged from following the teachings of Dubin or led in a divergent
direction than that taken by appellant. See In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131
(Fed. Cir. 1994) (“A reference may be said to teach away when a person of ordinary skill, upon
reading the reference would be discouraged from following the path set out in the reference, or would
be led in a direction divergent from the path that was taken by the applicant. The degree of teaching
away will of course depend on the particular facts; in general, a reference will teach away if it suggests
that the line of development flowing from the reference’s disclosure is unlikely to be productive of the
result sought by the applicant. [Citations omitted.]”).
Furthermore, we find that one of ordinary skill in this art would have reasonably recognized that
the teachings of both Kawaai and Dubin are directed to emulsified aqueous fuels that can be spray
combusted and share such common ingredients as nonionic surfactants and stabilizers, and that Kawaai
would have suggested that an alcohol can be used in the similar aqueous fuels of Dubin. Thus, one of
ordinary skill in this art would have found in the combination of references the suggestion that an
emulsified aqueous fuel containing an alcohol, lubricity enhancers, and stabilizer additives, even if such
additives are not those disclosed in appellant’s specification. Keller, supra. Appellant has not shown
that the appealed claims rejected in the grounds of rejection considered here are limited to the lubricity
enhancers and stabilizers specifically disclosed in the specification or that the stabilizers disclosed in the
references fall outside of the definition of “an additive to improve resistance to phase separation at
temperatures above about 170°F,” that is, at 76.6°C, when used in an emulsified aqueous fuel
composition taught by the references. See Best, supra. We also pointed out above the teachings of the
references which pertain to the claim features discussed by appellant (brief, pages 20-21). We note
here with respect to claim 9, that Dubin (col. 4, lines 30-37) would have disclosed to one of ordinary
skill in this art the reasons why “demineralized water,” which would include “deionized water,” is
desirable, as pointed out by the examiner (answer, page 8).
We cannot agree with appellant that the disclosure in the specification as cited establishes the
criticality of the manner in which the fuel, water, alcohol and surfactant are combined to form a stable,
oil-in-water type emulsified fuel vis-à-vis the teachings of the references. Kawaai discloses the use of a
“mixer (3,600 rotation/minute)” which appears from Dubin to be a conventional device for forming an
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