(concurring in result).
The rejection here is based on 35 U.S.C. § 103. Appellants argue that the appealed claims cover an unobvious process in that they call for “placing solid carbonaceous fuel in the bottom of said vessel, [and] placing ferrous metal on top of said carbonaceous fuel.” Appellants argue:
* * * It is essential in Appellants’ process that the oxygen which is blown downwardly against the charge impinge against the carbonaceous fuel which has been placed in the bottom of the vessel, and covered over with solid ferrous metal. In Suess the carbonaceous fuel is not placed on the bottom of the vessel and is not overlayered with solid ferrous material.
Suess discloses essentially the same process utilizing solid starting materials and fuel against which oxygen is blown downwardly in the melting process. The solid starting materials and the fuel in the Suess process are “introduced into the refining vessel.” Also the fuels “can be added.” Suess also discloses that “the starting material mixture may be introduced as a single charge prior to initiation of the melting, or may be gradually fed in small incremental amounts.”
The Suess reference does not disclose the precise spatial relationship between the starting material and the fuel as defined in the appealed claims. This appears to be the sole difference between appellants’ claimed method and the Suess method. Despite this difference, Suess fairly discloses mixing the fuel and the starting material as taught in appellants’ specification.
As appellants’ specification does not disclose that the precise spatial relationship claimed between fuel and starting material is other than optional, it seems to me the appealed claims cover subject matter which one of ordinary skill in the art would find to be obvious in view of Suess alone under 35 U.S.C. § 103.