Appeal 2007-2486
Application 10/429,369
Regarding claim 8, we are unpersuaded by Appellant’s argument that
Sorgenti and Gunnerman require the addition of oxidizing agents, whereas
claim 8 does not require an oxidizing agent separate from the fuel (Br. 16-
17). First, claim 8 uses open ended claim language “comprising” such that
the addition of an oxidizing agent is not excluded from the claim. In re
Baxter, 656 F.2d 679, 686, 210 USPQ 795, 803 (CCPA 1981). Second,
because the claim is open ended and does not exclude an oxidizing
compound, oxidation of the nitrogen by ultrasound is not required by the
claim. Rather, the nitrogen oxidation could be achieved using an added
oxidizing agent. Third, Appellant has not disclosed that nitrogen oxidization
is facilitated by ultrasonic energy. Rather, Appellant merely states at the end
of the Specification that “it is contemplated that the removal of nitrogen will
closely mimic the processes described herein for effectuating the removal of
sulfur” (Specification 8, ¶ [0026]).
For the foregoing reasons, we affirm the Examiner’s § 103(a)
rejection of argued claims 1 and 8 and of claims 2, 4, 7, 9, and 10 (which
stand or fall with claims 1 and 8).
35 U.S.C. § 103(a) REJECTION OF CLAIM 6 OVER SORGENTI IN
VIEW OF GUNNERMAN AND MEYER
Appellant does not separately argue the § 103(a) rejection of
dependent claim 6 over Sorgenti in view Gunnerman and Meyer. Rather,
Appellant relies on the arguments made regarding the rejection of
independent claim 1, from which claim 6 depends, for the viability of
rejection of claim 6. We are unpersuaded by Appellant’s arguments
regarding the rejection of claim 1 over Sorgenti in view of Gunnerman.
8
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