Appeal 2007-1787
Application 10/742,187
Br. 8). More specifically, Appellants assert that railroad ballast by definition
comprises “large and heavy rocks” (Reply Br. 6). This assertion is inconsistent
with Appellants’ own Specification. Although the Specification does not explicitly
define the term ballast, it does incorporate by reference the disclosure of U.S.
Patent No. 5,657,700 (Bounds), which states that railroad ballast usually comprises
fine gravel, cinders, or the like (Finding of Fact 2). Furthermore, the customary
meaning/definition of ballast is gravel or broken stone laid in a railroad bed or used
in making concrete (Finding of Fact 1), and the customary meaning/definition of
the term aggregate includes any of several hard inert materials (as sand, gravel, or
slag) used for mixing with a cementing material to form concrete, mortar, or
plaster (Finding of Fact 3). Therefore, in view of the absence of any explicit
statement in the Specification to the contrary, aggregate, as is customarily defined,
is equivalent to the claimed railroad ballast. As such, we find Bounds and
Anderson are both concerned with the problem of dispensing aggregate in a
controlled manner and thus are reasonably pertinent to the particular problem with
which Appellants are involved and are analogous art.
Appellants further contend that Anderson fails to disclose “opening or
closing of a hopper door or anything similar” (Reply Br. 2), and in fact “avoids the
use of gates or doors and does so expressly and intentionally because of the
patentee’s perception that doors and gates are ‘inadequate’” (Reply Br. 3). We
disagree.
First, the Examiner did not cite Anderson for it’s teaching of a gate or door,
but rather for teaching the use of GPS location information to control the
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