Appeal No. 2001-0299 5
Application No. 08/993,861
of first swirl vanes at the upstream end of the tubular body. Rather, claim 1 recites a
row of first swirl vanes "attached to said septum adjacent said body inlet." The swirl
device 18 of Koch is attached to the septum (conical wall 36) adjacent3 the guide tube
17.
We have not overlooked the fact that claim 1 recites swirl vanes for channeling
air "into said body" (see request, page 8). In that the claim does not require that the
swirl vanes channel air into the inlet end of said body, the fact that the swirl device 18
channels air into the tubular body at a location at the downstream end of the guide tube
portion thereof is of no relevance in determining whether the subject matter of claim 1 is
anticipated by Koch.
Appellants’ argument on page 9 of the request that “[t]he swirl plates 14 are
clearly not illustrated in figure 2 of Koch as being adjacent the swirl device 18, but
significantly remote therefrom” was not presented in appellants’ brief and thus is
untimely in the request for rehearing. It therefore will not be considered in this decision
on rehearing. See In re Schreiber, 128 F.3d 1473, 1479, 44 USPQ2d 1429, 1433 (Fed.
Cir. 1997) and In re Kroekel, 803 F.2d 705, 708, 231 USPQ 640, 642-43 (Fed. Cir.
1986) (the failure of an appellant to present an argument before the Board of Patent
Appeals and Interferences, prior to the submission of a request for reconsideration,
constitutes a waiver of such an argument). See also Ex parte Hindersinn, 177 USPQ
3 Adjacency does not require that the vanes or septum be in actual contact with the inlet, but
merely that they lie near or close to the inlet. Webster's New World Dictionary, Third College Edition
(Simon & Schuster, Inc. 1988).
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