Appeal No. 2003-1398
Application 09/472,800
prills of the ANFO of Hajto to arrive at an ANFO containing prills as specified in the appealed
claims in light of Tucker, Cescon and Richards. The examiner has not established that the prills
used by Hajto are porous and have an oil absorption capacity which satisfies the limitations of the
appealed claims, and the method used to test for oil capacity by Hajto does not employ No. 2 fuel
oil in the test as required for the appealed claims as we pointed out above. Thus, we find no
evidence on which to base the conclusion that it reasonably appears that the claimed prills and
those of Hajto are substantially identical even though Hajto is silent with respect to particle size.
See Best, 562 F.2d at 1254-55, 195 USPQ at 432-33 (“Because any sample of Hansford’s
calcined zeolitic catalyst would necessarily be cooled to facilitate subsequent handling, the
conclusion of the examiner that such cooling is encompassed by the terms of the appealed claims
was reasonable.”); see also In re Spada, 911 F.2d 705, 708-09, 15 USPQ2d 1655, 1657-58 (Fed.
Cir. 1990) (“The Board held that the compositions claimed by Spada ‘appear to be identical’ to
those described by Smith. While Spada criticizes the usage of the word ‘appear’, we think that it
was reasonable for the PTO to infer that the polymerization by both Smith and Spada of identical
monomers, employing the same or similar polymerization techniques, would produce polymers
having the identical composition.”)
Furthermore, we find that the modification of the particle size proposed by the examiner
is not supported by the secondary references. Tucker acknowledges that “inherently low
porosity” high density ammonium nitrate must be “made very small” to achieve “the desired
amount of fuel oil (albeit, on the surface of the AN prills)” (col. 3, lines 1-6; emphasis supplied),
noting that “[n]ormally, ANFO is such that the . . . prills must absorb at least about 6% (wt.) fuel
oil” (col. 3, lines 6-7).3 The explosive compositions of Cescon are in fact emulsions, not ANFO.
While the combined ammonium nitrate filler material, which are mini prills having the particle
size set forth at col. 5, lines 49-60, and ammonium nitrate particles of Example 1 of Richard
would appear to have an overall particle size and an untapped bulk density which would fall
within the limitations of the appealed claims (see also, e.g., cols. 1-2, col. 4, lines 1-11, and col.
3 The examiner should compare the prills of the claimed ANFO with the prills disclosed by
Tucker (e.g., col. 4, line 36, to col. 5, line 2, col. 7, lines 19-32, and cols. 7-11) in connection
with any further prosecution of the appealed claims subsequent to the disposition of this appeal.
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