Appeal No. 95-0922
Application No. 08/082,907
rendered indefinite by the recitation "substantially even...
distribution". More specifically, the examiner believes that
"[t]he metes and bounds of even-ness have not been set forth so
as to establish which distributions are embraced and which are
not" (answer, page 2).
Claims 1 through 3, 6 and 7 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Borchardt. This rejection is
premised upon the examiner's belief that "[t]he specific particle
size distribution as claimed herein would be inherent in the
Borchardt material" (answer, page 2).
Finally, claims 4 and 5 are rejected under 35 U.S.C. § 103
as being unpatentable over Borchardt based upon the examiner's
conclusion that "[i]t would have been obvious to the person
having ordinary skill in the art to have used the Borchardt
ground almond shells in an oil based drilling fluid because doing
so is in clear response to the express suggestion by the
patentee" (answer, page 2).
OPINION
We cannot sustain any of the above noted rejections.
Concerning the section 112, second paragraph, rejection, the
appellants are correct in stating that example 1 of their
specification describes a milling operation whereby, "[a]s shown
3
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