Appeal No. 2000-1653
Application No. 08/906,586
Johnston upstream of inlet 14 in view of Arvidson’s showing of
flow meters 64 and 124 and pumps 62 and 118.
Among the limitations of claim 1 argued by appellant as
patentably distinguishing over the combined teachings of
Johnston and Arvidson is the requirement of claim 1 for “means
within said first chamber for uniformly mixing materials
introduced therein with a carrier fluid flowing therethrough.”
The examiner’s views with respect to this limitation are found
on pages 3-4 of the answer and read as follows:
Applicant’s argument is that Johnston does not
contain uniform mixing means in the first stage.
However, a review of applicant’s specification (page
5, lines 14-16) shows that applicant’s first stage
device does not provide perfectly uniform mixing
either. The second stage is used “to increase
mixing of the components in the first stage”. It
could technically be argued that depending on how
strictly the word “uniformly” is defined that the
amendment after-final (which merely added the word
“uniformly”) should not have been entered because it
does not describe applicant’s device. However, a
view that “uniformly” means mostly, substantially,
or desirably uniform rather than absolutely
perfectly uniform was the view taken by the examiner
in deciding to enter the amendment. In the same
manner that applicant’s device uses a second stage
to improve mixing, Johnston uses a second stage to
improve the mixing of the first stage (column 4,
lines 16-28). Therefore, it should be clear that
“uniformly” cannot reasonably be applied to
applicant’s device any more than to Johnston.
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