Ex Parte Butler et alDownload PDFBoard of Patent Appeals and InterferencesDec 22, 200810749259 (B.P.A.I. Dec. 22, 2008) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JAMES R. BUTLER, PAUL J. BURAS, and WILLIAM LEE ____________ Appeal 2008-2800 Application 10/749,259 Technology Center 1700 ____________ Decided: December 22, 2008 ____________ Before THOMAS A. WALTZ, LINDA M. GAUDETTE, and KAREN M. HASTINGS, Administrative Patent Judges. WALTZ, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Pursuant to 37 C.F.R. § 41.52, on September 10, 2008, Appellants timely requested a rehearing (hereafter “Request”) of our August 29, 2008, Decision on Appeal (“Decision”), wherein this merits panel affirmed the Appeal 2008-2800 Application 10/749,259 Examiner’s rejection of claims 1-3, 5-11, 12-20, 23-24, 26, 28, 30-32, 35-37, 39-47, 49 and 50 under 35 U.S.C. § 103(a) as unpatentable over Guo. Appellants request a rehearing on grounds that this panel overlooked the fact that claims 23, 24, 26, 35-37, and 39 require that the asphalt mixture includes ground tire rubber, while Guo does not teach, show or suggest utilizing ground tire rubber in an asphalt mixture (Request 2). Appellants assert this lack of teaching in Guo was discussed in the Appeal Brief filed December 22, 2006, third paragraph. Id. An Appellant may request a rehearing, and the request “must state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1). But, “[a]rguments not raised in the briefs before the Board and evidence not previously relied upon in the brief and any reply brief(s) are not permitted in the request for rehearing except as permitted in paragraphs (a)(2) and (a)(3) of this section.” Id. In the relevant portion of their Brief (third paragraph), Appellants had stated, Third, Guo does not teach that adding from about 0.05 wt% up to 5 weight % of a metal oxide selected from Groups IIA and IIB of the Periodic Table to an asphalt, polymer, and ground tire rubber (GTR) composition improves the homogeneity of the asphalt composition as compared with the compatibility of an identical asphalt composition having a lesser metal oxide amount, as recited in the pending claims. See Butler Claim 23 et seq. and Claim 49 et seq. App. Br. 7 (Dec. 22, 2006) [emphasis in original], see also Supp. App. Br. 10 (Mar. 13, 2007). 2 Appeal 2008-2800 Application 10/749,259 Appellants’ argument in their Brief clearly was directed to whether the prior art taught improving the homogeneity of an asphalt composition by adding an excess of metal oxides. Appellants did not dispute or argue whether the prior art taught or suggested an asphalt mixture comprising ground tire rubber. Furthermore, Appellants recognized that “[t]he Examiner further states that the incorporation of the ground tire rubber (GTR) is suggested by the dry rubber at ‘column 3 lines 34+’,” citing page 4, ll. 2-4, of the Office action dated Dec. 12, 2005 (Supp. App. Br. 9). However, Appellants did not dispute or contest this factual finding in any brief before the filing of this Request. Accordingly, we determine that Appellants are seeking to introduce a new argument not previously raised in their Briefs. We further determine that neither of the exceptions in paragraphs (a)(2) or (3) of 37 C.F.R. § 41.52 apply. This new argument is not permitted in this Request. Thus, we do not find any points overlooked or misapprehended in our Decision. Therefore, the Request for Rehearing is denied. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). DENIED ls FINA TECHNOLOGY INC P.O. BOX 674412 HOUSTON, TX 77267-4412 3 Copy with citationCopy as parenthetical citation