Appeal 2007-4234
Application 10/929,891
Fourth, Appellant's contention that the translation of Ohkura makes it
clear that Ohkura is not concerned with "slop oil" as defined by Appellant is
wrong. The totality of the evidence weighs in favor of the Examiner's
position. Specifically, the abstract of Ohkura by the Japanese Patent Office
clearly recites "slop oil" and Appellant has not established that the term
translated as "run off oil" is materially different from "slop oil," e.g., an
affidavit from a qualified translator.
Based on the foregoing, we affirm the rejection of claim 1 under 35
U.S.C. § 102(b) as anticipated by Ohkura. Since Appellant has not offered
independent arguments against the rejection of claims 2-3, 5-9, 14-15 and 19
under § 102(b) as anticipated by Ohkura, we affirm that rejection without
further discussion. 37 C.F.R. § 41.37(c)(1)(vii).
As to claim 4, Appellant argues that just because crystalline wax is
present in slop oil, it does not follow that dispersing slop oil in water will
convert crystalline wax to amorphous wax. Appellant argues, in relevant
part, that the diluent for the dispersed wax in Ohkura is water. Indeed, the
Examiner appears to agree with Appellants that Ohkura "teaches lowering of
the surface tension (to permit dispersion at sea)" (Answer at 4, emphasis
added). Claim 4, however, requires the diluent for the dispersed wax to be
crude oil. The Examiner has not made any specific finding that Ohkura
discloses, expressly or inherently, crude oil as the diluent for the dispersed
wax as required by claim 4. On this record, we decline to undertake such
fact finding in the first instance. Therefore, we REVERSE the rejection of
claim 4 under § 102(b) as anticipated by Ohkura.
V. Conclusion
In view of the record and for the reasons given, it is
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