Appeal No. 1999-1095
Application 08/751,632
in connection with the belated argument of unexpected results.
Finally, the appellants take exception to a statement
which they assert the examiner made but which the examiner did
not make. In that regard, on page 4 of the request for
rehearing it is stated:
Applicant also assert that the Examiner’s
unsubstantiated statement that viscosifying agents
are solely intended to prevent charge material from
being driven into the underground formation (see
Board decision, p. 8) overlooks the nonobvious
results produced by this invention. (Emphasis
added.)
Our initial decision on page 8 did not indicate any examiner
statement which regard viscosifying agents as “solely”
intended to prevent charge material from being driven into the
underground formation. What was stated in our decision is
this:
With regard to Ennis ‘889, the examiner’s answer
states that the disclosed functionality of a
viscosifying agent to prevent a charging material
from being driven into the underground formation is
equally applicable to the combination of Riordan and
Ennis ‘429. The finding is facially plausible.
Furthermore, in the examiner’s answer, on page 5, it
is stated that “the use of such ‘viscosifying
agents’ is notoriously well known in the wellbore
exploration art for this very purpose.” The
appellants have not filed any reply to the
examiner’s answer. Thus, the statement of the
examiner as to what is notoriously well known in the
art stands unrebutted.
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