Appeal No.1997-2277
Application 08/462,814
(2) “Every material limitation of applicant’s claims is met.”
Findings (1) and (2) are erroneous. Fukushima’s paving composition does not
comprise stone aggregate, nor does it comprise an anthracite material. Thus, not all the
claim limitations are met. Fukushima at column 4, lines 3-8, discloses that tars and coal
oils are “remarkedly [sic] effective for improving the adhesive property of the present
paving composition to natural aggregates, such as water-wetted ground stone and
pebbles, baked synthetic aggregates . . . and cement concretes (emphasis added).”
These “natural aggregates” are a type of surface on which the paving composition is
deposited, not a component of the paving composition. Further, according to Fukushima,
“[a]s the coal to be used in this invention, peat, lignite, brown coal, bituminous coal or the
like may be employed along [sic] or in mixtures thereof (emphasis added).” Column 2,
lines 15-18. Fukushima discloses that “the coal is porous.” Column 2, lines 22-23.
Fukushima does not describe the use of anthracite in his paving composition..
(3) “Examiner’s analysis corresponds to the analysis of the board in their
[sic] decision in the parent application [Application No. 07/655,675].”
In this application, the examiner argues that Fukushima describes appellant’s
claimed composition. 35 U.S.C. § 102(b). On the contrary, in Application 07/655,675, the
rejection was stated under 35 U.S.C. § 103 and the issue was whether it would have been
obvious to use the anthracite coal disclosed at page 43 of Grant & Hackh’s Chemical
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