Appeal 2007-2235
Application 10/138,617
carefully constructed device of 1.4 liters to a haphazardly filled preexisting
landfill of greater than 1000 tons is hardly mere scaling up” (Reply Br. 6).
We are not persuaded by this argument. Hudgins discloses that
injecting air into a landfill allows microorganisms to degrade the organic
compost in municipal solid waste (Hudgins, col. 1, l. 50 through col. 2, l.
21). Apel discloses that “a compost selected from organic matter such as
wood, leaves, grass clippings, or the like, or mixtures thereof” can
decontaminate a nitrogen oxide-contaminated gas stream (Apel, col. 2, l. 50
through col. 3, l. 1). Thus, the scaling up suggested by the references is not
moving from Apel’s device to a landfill, as argued by Appellant, but the
selection of a landfill having at least 1000 tons of waste mass. Because one
of ordinary skill viewing the cited references would have expected a
compost-containing landfill of at least 1000 tons to degrade a substantial
amount of the nitrogen oxides injected into it, we agree with the Examiner
that it would have been obvious to use a landfill of that size to process
nitrogen oxide-contaminated gases.
Appellant argues that landfills have various advantages over the
devices of Kneer and Apel: they are cheaper, and include a larger surface
area for the biological remediation and longer residence times (Br. 13).
Appellant concludes that even if the Examiner had made out a prima facie
case of obviousness, “the size and nature of a landfill is critical to the
invention, and provides unexpected advantages in degrading polluted gases
that are not suggested by the cited prior art” (id.).
We are not persuaded by this argument. “[I]t is well settled that
unexpected results must be established by factual evidence. ‘Mere argument
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