Appeal No. 1998-0551
Application No. 08/299,292
Evans clearly suggests a zinc amalgam lamp fill material. As
noted by Appellants on page 13 of their brief (citing The
Mathison Alkali Works v. Coe, 90 Fed.2d 443 (D.C. Cir 1938)),
“the unintentional statement of a fact might be considered
sufficiently a part of the prior art to require its
investigation. But a statement so contrary to fact, as this
was demonstrated to be, is not a part of the prior art.”
Since the use of zinc amalgam as a lamp fill material is not
contrary to fact, as evidenced by Appellants’ use thereof,
Evans statement regarding zinc amalgam is considered a prior
art teaching. Thus, we will sustain the Examiner’s rejection
of claims 17, 22 and 42. Claims 18 through
21, 43 and 44 recite characteristics for zinc amalgam which
are taught by Evans in generic statements for all suggested
amalgams, e.g. pellets, mercury liquid at 20°C, metal (zinc)
outer shell, porous and metastable. Note Evans, column 3,
line 68 to column 4, line 3; column 4, line 8;
column 4, line 44; and column 6, line 64 to column 7, line 8.
Accordingly, we will sustain the Examiner’s rejection of
claims 18 through 21, 43 and 44.
88
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