97 F.3d 1427 (Fed. Cir. 1996), 96-1130, In re Kemps

Docket Nº:96-1130.
Citation:97 F.3d 1427
Party Name:40 U.S.P.Q.2d 1309 In re Andreas G. KEMPS.
Case Date:October 08, 1996
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1427

97 F.3d 1427 (Fed. Cir. 1996)

40 U.S.P.Q.2d 1309

In re Andreas G. KEMPS.

No. 96-1130.

United States Court of Appeals, Federal Circuit

October 8, 1996

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Andrew J. Patch, Young & Thompson, Arlington, VA, argued, for appellant.

Linda Moncys Isacson, Associate Solicitor, Office of the Solicitor, Patent and Trademark Office, U.S. Department of Commerce, Arlington, VA, argued, for appellee. With her on the brief were Nancy C. Linck, Solicitor, Albin F. Drost, Deputy Solicitor, and Kevin Baer, Associate Solicitor.

Before ARCHER, Chief Judge, MAYER, and LOURIE, Circuit Judges.

ARCHER, Chief Judge.

Andreas G. Kemps appeals the decision of the United States Patent and Trademark Office (PTO) Board of Patent Appeals & Interferences (Board), Appeal No. 95-2635, dated September 28, 1995, affirming the examiner's rejection under 35 U.S.C. § 103 (1994) of all remaining claims of the patent application. We affirm.


The claimed invention in this application, No. 08/070,359, is a method of removing old asphalt concrete containing a stone fraction using two steps: (1) blowing steam onto the old asphalt concrete in order to soften it and (2) pushing off a thus-softened upper layer without crushing the stone fraction. The method is to be applied to two-layer road surfaces, with the upper layer containing drainage cavities and the lower layer being dense and generally impermeable. The porous upper layer facilitates the steam heating in two ways. First, the porosity affords a greater surface area upon which the steam can condense, allowing greater transfer of the heat generated by condensation of the steam. Second, the pores serve to drain the condensed water from the layer, facilitating the entry of more steam into the upper layer.

Specifically, claim 3 1 of Kemps' application states:

3 A method for removing from a road old asphalt concrete containing a stone fraction, comprising blowing steam onto the old asphalt concrete to soften the

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old asphalt concrete, and then pushing off and removing only a thus-softened upper layer of the old asphalt concrete without crushing of said stone fraction, wherein said road comprises an upper layer of open asphalt concrete having cavities therein which ensure perfect drainage and a lower layer of dense asphalt concrete below said open asphalt concrete, and said old asphalt concrete is removed only from said upper layer.

The examiner rejected Kemps' claims on the basis of United States Patent No. 4,226,552, issued to Moench (Moench), in view of United States Patent No. 4,793,730, issued to Butch (Butch). The examiner described Moench as teaching the heating of asphalt concrete with a hood heated by gas burners, the breaking up of the heated asphalt with a scarifying element, and the scraping away of the heated asphalt with a blade. Butch, according to the examiner, teaches a similar process in which steam is used to heat the asphalt surface. As a result, the examiner concluded that it would have been obvious to one of ordinary skill in the art to use steam, as per Butch, to heat the pavement before scraping it away, as per Moench.

The Board, in affirming the examiner's determination, noted Butch specifically teaches the use of steam to overcome complications of polymerization and oxidation associated with the use of flame burner units. Moreover, the Board rejected Kemps' contention that the concrete with drainage openings called for in the claim distinguished the claimed invention because, as admitted by the applicant...

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