Appeal No.1997-2277
Application 08/462,814
II. Rejection2
The appealed claims stand rejected under 35 U.S.C. § 102(b) as anticipated by
Fukushima.
On consideration of the record, we reverse this rejection.
III. Discussion
1. The claims are directed to an asphaltic concrete compound comprising
(a) aggregate that comprises gravel, rocks, and added lossy microwave anthracite
material, and (b) asphalt cement surrounding the aggregate. Claim 1 recites that the lossy
microwave anthracite material is included in a quantity large enough to efficiently intercept
microwave energy.
2. The examiner’s rejection under 35 U.S.C. § 102(b) is predicated on the
following findings of fact, which we find are not supported by the evidence of record. See
Final Rejection, Paper No. 5, page 2.
(1) “The reference [Fukushima] teaches an asphalt composition comprising
stone aggregate (column 4, lines 2-6).”
2The amendment after Final, Paper No. 6, addressing the rejection of claim 6 under
35 U.S.C. § 112, set forth at page 3 of the Final Rejection, Paper No. 5, has been entered.
See the Advisory Action, Paper No. 7. The examiner does not repeat or refer to the § 112
rejection in the Examiner’s Answer. Therefore, as a matter of standard procedure, the
previously entered rejection of claim 6 under 35 U.S.C. § 112 has been withdrawn. See
Paperless Accounting, Inc. v. Bay Area Rapid Transit System, 804 F.2d 659, 663, 231
USPQ 649, 651-52 (Fed. Cir. 1986). MPEP § 707.07(e) (Rev. 1, Feb. 2000).
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