Ex parte REIMANN et al. - Page 3


          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          out in the final Office action, are withdrawn.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.").                   

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