Appeal 2006-2238
Application 10/168,709
phrase was regarded as a claim limitation, it would not distinguish over any
other particles since determination of flow rates as recited in the claims
depends on many factors such as the packing density, type of polymer
material, use of solvent, and swelling rate of the solvent (Answer 3). In
other words, based on the above-noted factors, especially the amount or
density of the packing, any particles could be packed into a chromatographic
bed to produce the claimed flow rates.4
In view of our claim construction as discussed above, and in view of
the uncontested findings of the Examiner that Park discloses the two claimed
steps (a) and (b) of claim 1 on appeal (Br. 4-8), we determine that the
Examiner has established a prima facie case of anticipation which has not
been adequately rebutted by Appellants' arguments. Therefore, we affirm
the Examiner’s rejection of claim 1, and claims 2, 6, 7, 9, 10, 14, 15, and 17-
19, which stand or fall with claim 1, under § 102(b) over Park.
B. The Rejection under § 103(a) over Park
The Examiner applies Park as discussed above, further finding that
Park does not expressly teach cross-linking with electron beam radiation at a
dosage of 0.1 to 20 Mrad (Answer 5). However, the Examiner finds that
Appellants admit that it was well known in this art to use electron beam or
gamma radiation in the preparation of sorbents for use as biocompatible
materials (id., citing the Specification 2, ll. 15-31). From these findings, the
4 We also note that independent claim 10 on appeal, directed to the matrix
product produced by the same process steps as recited in claim 1 on appeal,
does not recite any permissible flow rates when packed into a
chromatographic bed. Accordingly, it appears that this flow rate language is
not essential to particularly point out the invention defined by the claims.
See In re Stencel, supra.
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