Appeal No. 1999-0772 Application No. 08/600,165 feeding cooling gas and flash-cooling flue gases in a kiln hood and a fuel gas discharge chamber; and exhausting SO2-containing [sic] flue gases, removing dust, washing the SO2 [sic], mixing with air and converting to SO3 [sic] or H2SO4 [sic]. The examiner relies on the following prior art reference as evidence of unpatentability: Herzog et al. 1,112,180 May 1, 1968 (Herzog)(published GB patent application) Claims 12 through 17 on appeal stand rejected under 35 U.S.C. § 103(a) as unpatentable over Herzog. (Examiner’s answer, pages 4-5.)2 We cannot uphold this rejection. Herzog describes a process for the production of raw stock for the manufacture of sulfuric acid and cement from calcium 2 The examiner indicates that all other rejections, as set out in the final Office action, are withdrawn. (Examiner's answer, p. 3.) Further, the examiner refers to U.S. Patent 5,049,198 to Ribas issued on September 17, 1991 and U.S. Patent 3,865,602 to Stich et al. (Stich) issued on February 11, 1975. (Id.) According to the examiner, Ribas "is nearly identical [in] in scope" to Herzog, while Stich "provides a clear teaching of the known and conventional Muller-Kuhne process for further clarification purposes on this process should it be necessary." (Id.) However, we will not consider Ribas and Stich as part of the evidence relied upon in the examiner's rejection, because these references were not positively included in the examiner's statement of the rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970)("Where a reference is relied on to support a rejection, whether or not in a 'minor capacity,' there would appear to be no excuse for not positively including the reference in the statement of rejection."). 3Page: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 3, 2007