Appeal No. 2001-1680
Application 08/890,471
Claim 14 is representative of the subject matter on
appeal and is reproduced below:
14. Method for recovering fumes from a container of
roofing material comprising:
rotating a fan to draw air from the inside of the
container of roofing material for passing through a conduit in
fluid communication with the container of roofing material;
and providing a flame within the conduit, with the fumes
passing through the conduit with the air drawn from inside of
the container of roofing material being burned or consumed by
the flame.
The references relied on by the examiner are:2
Hart et al. (Hart) 3,880,143 Apr. 29, 1975
Locke 4,991,532 Feb. 12, 1991
Vross et al. (Vross) 5,873,919 Feb. 23, 1999
2 The examiner also appears to rely on the following references:
Blazejewski, 5,833,938 Nov. 10, 1998
Driscoll et al. (Driscoll) 5,620,668 April 15, 1997
See Examiner’s Answer, page 3. However, the examiner has failed to
incorporate these references into the statements of the rejections.
“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 the rejection.”
In re Hoch, 428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970).
Accordingly, in reaching our decision, we have not considered either
Blazejewski or Driscoll.
Appellant has also misapprehended the nature of this appeal
proceeding. Specifically, we note that appellant has attempted to
introduce new evidence as part of his appeal brief. See Appeal Brief,
page 4, last paragraph-page 5, first paragraph. 37 CFR 1.195 strictly
prohibits the introduction of new evidence absent a showing as to why
such evidence was not timely submitted. However, we note that even if
such showing had been made, appellant’s proffered evidence would be
entitled to little weight given the fact that it was not presented in
the form of a declaration. In any event, having concluded that the
examiner failed to extablish a prima facie case of obviousness (see
supra, Discussion), we need not consider appellant’s evidence of
nonobviousness.
2
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