Ex parte BHAT

Board of Patent Appeals and Interferences

Aug 29, 1997

07807750 (B.P.A.I. Aug. 29, 1997)

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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 33

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte DINESH M. BHAT
______________

Appeal No. 94-0605
Application 07/807,7501
_______________

HEARD: June 9, 1997
_______________

Before JOHN D. SMITH, GARRIS and WARREN, Administrative Patent
Judges.

WARREN, Administrative Patent Judge.
On Request For Reconsideration
Appellant requests reconsideration of our decision dated
June 30, 1997, wherein we affirmed the decision of the
examiner based on his rejection of appealed claims 93 through
138 under 35 U.S.C. ' 103 as being unpatentable over Gatward.
We have carefully considered appellant’s request but are
unconvinced of error in our decision. Thus, we decline to
make any changes in our prior decision for the reasons which
follow.

1 Application for patent filed December 17, 1991. According
to applicant, this application is a continuation of
application for patent 07/598,995, filed October 10, 1990.
Appeal No. 94-0605
Application 07/807,750
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We are not persuaded that our decision is in error by
reason of our finding that “Gatward employs a ‘Denver cell’
... which is among the aerators listed in appellant’s
specification (page 13) as capable of generating a stable,
free draining foam” (original decision, page 19, lines 1-3;
see request, page 2). We observe that the examiner also found
that Gatward used a “Denver frothing cell” (answer, page 2),
and thus this question of fact is improperly raised by
appellant for the first time in his request. See, e.g., In re
Kroekel, 803 F.2d 705, 708-09, 231 USPQ 640, 642-43 (Fed. Cir.
1986). We note in passing that appellant has not established
in his request that the “Denver cell” used in Gatward does not
prepare a “surfactant-enriched stream,” which is “a stable-
free-draining foam,” and “a surfactant depleted stream,” which
is “surfactant-depleted liquid which is substantially free of
entrained bubbles,” as required by the method of appealed
claim 93 as we have construed that claim in our original
decision (pages 4-22).
We are also not convinced by appellant’s contention that
our decision is “inconsistent with the language as set forth
in the specific claims that define the air bubbles as having a
range of 1 mm and 5 mm in size” (request, page 2; emphasis
added) since this statement does not correspond to the
limitation “said bubbles being predominantly between about 1
and about 5 mm in diameter” (emphasis added) clearly stated in
appealed claim 93 on which we have decided this appeal
(original decision, pages 1-2 n.2).
Accordingly, we remain of the view that the claimed
processes as encompassed by appealed claims 93 through 138
Appeal No. 94-0605
Application 07/807,750
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under 35 U.S.C. ' 103 are unpatentable over Gatward as applied
in the ground of rejection of record.
We have granted appellants’ request to the extent that we
have reconsidered our decision of June 30, 1997, but we deny
the request with respect to making any changes therein.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
'1.136(a).
DENIED

JOHN D. SMITH )
Administrative Patent Judge )
)
)
)
BRADLEY R. GARRIS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
CHARLES F. WARREN )
Administrative Patent Judge )

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