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Appeal Number: 2005-2193
Application Number: 09/385,405
present invention is concerned with removing contaminants of the waste stream (i.e. first
components) which have an affinity for the solvent based layer” whereas Schmidt is concerned
with removing contaminants having an affinity for the non-solvent layer (Id.).
Appellant bases the above argument on a disclosure in Schmidt of separating the lower
aqueous phase (solvent based layer) from the upper oil phase (non-solvent based layer) using a
sight glass, the upper oil phase containing lubricating or coating oils, active ingredients, coloring
and preservative which may themselves be subject to recycling (Brief 20 citing Schmidt, col. 4, l.
1+). Appellant’s argument ignores the further disclosure in the next paragraph of Schmidt
disclosing the treatment of the lower aqueous (solvent) phase. Here, Schmidt states that “[n]ext,
the lower phase is hot filtered to remove any remaining traces of oil or other contaminants.”
(Schmidt, col. 4, ll. 22-23 emphasis added). Schmidt is treating the same or substantially the
same starting materials as Appellant (gelatin waste from encapsulation processing) with the same
or substantially the same sight glass separation and hot filtration process as Appellant (compare
specification, p. 10, ll. 1-9 to Schmidt, col. 3, l. 64 to col. 4, l. 5 and specification, p. 13, ll. 11-
13; p. 15, ll. 10-17; p. 17, ll. 1-10 with Schmidt, col. 4, ll. 22-31). Under the circumstances it is
reasonable to conclude that the process of Schmidt is treating “first components” as claimed. See
In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657-58 (Fed. Cir. 1990); In re Best, 562
F.2d 1252, 1254, 195 USPQ 430, 433-34 (CCPA 1977).
We note that nowhere in Appellant’s specification is a distinction made between oily type
materials and particulates that can be effectively separated from the first liquid into the non-
solvent based layer and those that cannot. Nor is there any disclosure of which of these oily
components “have an affinity for the solvent.” The encapsulation waste material treated by
Schmidt is the same or substantially the same as that of Appellant. Appellant has provided no
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