Appeal 2007-0121
Application 10/324,594
solids separation and crushing means are conventional well known prior art
devices and unit operations which are available to one of ordinary skill in the
art.2
Turning to the applied Nelson patent, the Examiner has correctly
determined that Nelson discloses coating (combining) metal oxides, such as
magnesium oxide, calcium oxide, zinc oxide, and copper oxide, onto
expanded perlite particles to form a sulfur acceptor material (sorbent). See
the Answer (p. 3) and the sections of Nelson cited therein. Appellants do
not contest the Examiner’s determination that Nelson’s step of coating the
particles of expanded perlite with metal oxides substantially corresponds to
step (c) of representative claim 1 but for the arguments pertaining to the
requirement of starting with selectively crushed perlite particles. In other
words, Appellants’ arguments for patentability of the claimed process center
on step (a) and step (b).3 See the Briefs in their entirety.
Nelson teaches that the expanded perlite particles should be sized
similarly to an exfoliated vermiculate particle option, with the particles
being no larger than approximately 0.1-0.25 inches in their largest
dimension for exemplified fixed bed tests of the sorbent (col. 5, l. 63 – col.
6, l. 25). In addition to such a static or fixed bed, Nelson further discloses
that the acceptors (sorbent) can be made for use in a bubbling or fluid
2 It is axiomatic that admitted prior art, including prior art found in an
Applicants' Specification, may be used in determining the patentability of a
claimed invention and that consideration of the prior art cited by the
Examiner may include consideration of the admitted prior art found in the
Specification. In re Nomiya, 509 F.2d 566, 570-571, 184 USPQ 607, 611-
612 (CCPA 1975); In re Davis, 305 F.2d 501, 503, 134 USPQ 256, 258
(CCPA 1962).
3 Arguments not made in the Briefs are waived. See 37 C.F.R.
§ 41.37(c)(vii) (2006).
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