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out in the final Office action, are withdrawn.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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