Appeal No.1997-2277
Application 08/462,814
Dictionary, Fifth Edition (1987), in Fukushima’s paving composition. In the ‘675
application, the appealed claims recited an asphaltic concrete compound comprising
anthracite, as an added lossy microwave material. There, the merits panel was not asked
to consider, and did not consider, a rejection arising under 35 U.S.C. § 102. The
examiner’s analysis in the instant application does not “correspond” to the analysis of the
previous merits panel in a rejection arising under 35 U.S.C. § 103. See Application No.
07/655,675, Paper No. 21 (Appeal No. 1993-4448, mailed Jun. 22, 1994), page 5, line
10, through page 6, line 15.
(4) “Webster’s provides evidence of the fact that anthracite is mineral coal and
encompassed by the disclosure of Fukushima et al.”
Webster at page 90 does not identify anthracite as “mineral coal” but as “a hard
natural coal of high luster differing from bituminous coal in containing little volatile matter.”
For these reasons, the examiner has not established a prima facie case of
anticipation under 35 U.S.C. § 102(b).
3. One further matter warrants attention. This application is said to be a division of
Application No. 07/655,675. See the Declaration, filed Jun. 5, 1995, page 2, lines 1-3.
However, the face of the file wrapper indicates, incorrectly, that this application is a
continuation-in-part of Application No. 07/655,675. Upon return of the application, the
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