Appeal 2007-0166
Application 10/195,757
indicates that metal containing emulsions are solutions. This finding is also
consistent with the plain meaning of the term “emulsion”.1
The Examiner relies on In re Rose, supra to demonstrate that
generating an aerosol having solid microparticles or any size solids would be
per se obvious. However, the Examiner’s reliance on Rose is misplaced.
Rose does not indicate that Yadav’s teaching of suspending emulsions would
have led one of ordinary skill in the art to form or generate an aerosol having
solid metallic microparticles.2
Under these circumstances, we concur with the Appellants that Yadav
would not have taught or suggested generating an aerosol containing solid
metallic microparticles for the purpose of introducing it into a microwave
plasma reactor within the meaning of 35 U.S.C. § 103.
V. CONCLUSION
The decision of the Examiner is reversed.
VI. TIME
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
1 Grant & Hackh’s Chemical Dictionary, page 212 (5th Ed., McGraw-Hill
Inc. 1987) defines “emulsion” as “[a] fluid containing a microscopically
heterogeneous mixture of 2 normally immiscible liquid phases, in which one
liquid forms minute droplets suspended in the other liquid.”
2Rose held that changing the size of a lumber package was ordinarily well2
within the ambit of one of ordinary skill in the art. However, as is apparent
from In re Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8-9 (CCPA 1977), the
CCPA rejects any notion that changing sizes is per se obvious. Antonie
requires that sizes be shown to be a result effective variable in order to
establish a prima facie case of obviousness.
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