Appeal No. 2001-0299 7
Application No. 08/993,861
conical wall 36, such that the swirl device would be attached, albeit indirectly4, to the
conical wall 36. In any event, in that the examiner clearly stated in both the final
rejection (Paper No. 6, page 4) and the answer (Paper No. 10, page 6) that "the swirl
vanes 18 [are] attached to the septum5" and appellants did not contest this statement in
their brief, we hold that appellants' argument in the request to the effect that the swirl
device 18 is not attached to the conical wall 36 is untimely and, hence, will not now be
considered on rehearing. See Schreiber, 128 F.3d at 1479, 44 USPQ2d at 1433 and
Kroekel, 803 F.2d at 708, 231 USPQ at 642-43. See also Hindersinn, 177 USPQ at 80;
Harvey, 163 USPQ at 573; Cooper, 154 F.3d at 1331, 47 USPQ2d at 1904.
Appellants' statement (request, page 10) that "the Board overlooks that method
claim 7 expressly recites fuel injection" is incorrect. In arriving at our decision, this
panel fully appreciated that claim 7 positively recites a step of "injecting said fuel into an
upstream end of said swirl cup6." As noted above and in our earlier decision, Koch
discloses injecting fuel using the nozzle 27.
As for appellants' argument on page 11 of the request that Koch's nozzle 27
does not inject fuel "into an upstream end of said swirl cup," we note that claim 7, unlike
claim 1, does not define the "tubular swirl cup" as comprising first and second swirlers.
4 Claim 1 does not require a direct attachment of the first swirl vanes to the septum.
5 The examiner clearly identified the septum, by marking up Koch's Figure 2 in red, as the conical
wall 36.
6 Our statement on page 12 of the decision that claim 1 does not positively recite a fuel injection
nozzle did not apply to method claim 7.
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