Appeal No. 2005-0836 Page 9
Application No. 09/880,292
specific conclusion of obviousness based on the finding (Answer, p. 5). We, therefore, conclude
that the Examiner established a prima facie case of obviousness with respect to the subject
matter of claims 27, 28, 31, and 32 which has not been sufficiently rebutted by Appellants.
Claim 29
Appellants argue that the references do not teach or motivate one skilled in the art to
select the components of the described compositions such that the viscosity of the composition
allows the composition to be applied by spray, stream, or swirl applications as claimed in claim
29 (Brief, pp. 4-5). This argument is without merit in view of the disclosure in Torri that the
composition “may be made of such consistency that it may be applied by means of a ... spray
gun.” (Torri, p. 1, col. 1, ll. 11-13; see also p. 2, col. 1, ll. 26-31).
We conclude that the Examiner established a prima facie case of obviousness with
respect to claim 29 which has not been sufficiently rebutted by Appellants.
Claims 6 and 24
To reject claims 6 and 24, the Examiner added Elste to show that it was known in the art
to add a solvent to increase the low temperature properties of an asphalt-in-water emulsion
(Answer, pp. 5-6).
Appellants argue with respect to claims 6 and 24 that they add solvent for a different
reason than Elste (Brief, p. 10). In reality, it is not clear that the reason for adding solvent is
entirely different, but more importantly, even if the reason is different, that fact does not
somehow result in the nonobviousness of adding solvent. The Examiner has established through
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