Appeal No. 2002-0196
Application No. 08/952,913
present case, we do not find that the examiner has presented
sufficient facts to establish, prima facie, that Tsao discloses
basic cobalt (II) carbonate of spheroidal habit, and to justify
placing on appellants the burden of demonstrating that the
particles of Tsao are not, in fact, spheroidal. While the
examiner relies upon the EXAMPLE of the reference for the
statement that "[a]ssuming the precipitated carbonate is in the
form of 10 micron sphere the calculated surface area of the
carbonate is 230,000 sq. ft." (lines 27-29), appellants have
provided a Declaration by Dr. Armin Olbrich, one of the present
co-inventors and self-described "expert," who states that the
statement in the reference example is merely a theoretical
construct used to derive a surface area estimate, and not a
disclosure that the exemplified particles are spheres. The
declarant sets forth a number of factual differences between the
reference and inventive particles, including the fact that the
reference lacks the intense long-term, spinning process of the
present invention. Furthermore, the declarant states that "[i]f
Tsao were to achieve 10 micro spheres (or nearly so) as primary
particles this would not be the same as the present invention
particles (of about 10 microns) which are secondary
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