Appeal No. 1996-2530
Application 08/246,324
leaving as a product a ceramic or metal powder (see
example 3 of Wood)." But this is inaccurate. It clearly
states in the example, as in other examples, that the
metal powder is added prior to making the foam (col. 10,
lines 10-15) and a "sintered metallic foam resulted"
(col. 10, lines 18-21). In other words, the powder
mentioned in Wood's Example 3 is dispersed in the foam
prior to sintering. It is not produced and recovered
after calcination, as the claims require.
Examiner's statements notwithstanding, Wood nowhere
suggests or discloses making and recovering a powder.
The last two steps of the claimed process are not taught
in the prior art before us, rendering Wood inadequate to
support the prima facie case.
To fill the missing connection between the claimed
"powder" and Wood's "structure," examiner attempts to
equate the two:
[T]his distinction [between the claimed "powder" and
Wood's "structure"] is largely one of semantics.
Assuming arguendo that all of the products of Wood are
in fact rigid structures, such would not distinguish
between the processes of the appealed claims and those
of Wood. First, it is unclear precisely how large of
a particle would render something a powder, i.e. would
the maximum size of a particle be 1 ìm, 1 mm, 1 inch,
or even larger sizes? Would these particles be
required to be roughly spherical, or could they be
polygonal or oblong in shape? More importantly, if
one were to hypothetically step on or otherwise apply
pressure to one of the structures of Wood, clearly a
powdery substance of some sort would result. Thus, no
patentable distinction is seen between the shape or
structure of the products of Wood and those produced
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