Appeal No. 2001-0299 6
Application No. 08/993,861
78, 80 (Bd. App. 1971) and Ex parte Harvey, 163 USPQ 572, 573 (Bd. App. 1968)
(question not presented to Board in appeal and not discussed by examiner is not
appropriate for decision by Board on request for reconsideration). Note also Cooper v.
Goldfarb, 154 F.3d 1321, 1331, 47 USPQ2d 1896, 1904 (Fed. Cir. 1998), wherein the
Court noted that a party cannot wait until after the Board has rendered an adverse
decision and then present new arguments in a request for reconsideration. In any
event, appellants’ argument is unsound, as a review of Koch’s Figure 2 clearly
illustrates the swirl device 14 adjacent the swirl device 18, the two swirl devices being
separated only by the conical wall 36, akin to the first and second rows of swirl vanes
34, 36 in appellants’ Figure 2 being separated by the septum 32c.
As for appellants' arguments with regard to claim 2 (see pages 9-10 of the
request), the downstream end of Koch’s conical wall 36 (the "septum") is located axially
between the swirl devices 18 and 14. While a small portion of the swirl device 14 may
extend slightly upstream of the terminal point of the conical wall 36, one skilled in the
art viewing Koch’s Figure 2 would certainly consider the conical wall 36 as terminating
axially between the swirl devices 18 and 14. Further, we find no inconsistency between
this determination and the determination that the swirl device is attached to the septum,
as set forth on page 11 of our earlier decision. We appreciate that, as appellants
contend on page 10 of the request, the swirl device 18 could be attached to the distal
end of the tube 17. However, even if this is the case, the tube 17 is attached to the
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