Appeal 2007- 3662
Application 09/997,604
We cannot agree that Okada is only teaching the formation of acicular
regular octahedron particles. That language is not used to describe any of
the other exemplified compounds.
Nor can we agree that Appellants’ claims exclude particles of
“acicular regular octahedron” shape. Figure 4 of Okada shows the primary
particles of comparative example 1, and that figure shows particles of
“substantially octahedral shape” within the meaning of the claims. While
some of the particles, as argued by Appellants, include flat faces where
edges would arise in an ideal octahedron, as discussed above, the claim
language “substantially octahedral shape” allows for such deviations in
shape (Specification 8:10-12). The “substantially” language also
encompasses polyhedrons based on the growth of one primary particle from
the surface of another primary particle, shapes also seen in Figure 4 (see also
Appellants’ Appendices E and F).
With regard to the length of the crystal face, Okada describes the
particles of comparative example 1 as having faces of the claimed length
(Okada ¶ 0107). Moreover, given the diameters of the particles of the other
examples (10 µm or smaller (Exs. 4 and 5); 5 µm or smaller (Exs. 1-3)), they
too would have at least some faces of 1 µm or more. For an octahedral
polygon, the length of a face has to be more than half the diameter of the
particles. Moreover, as we explained above, to meet the claim only a small
amount of the faces need meet the 1 µm or more length limitation.
Furthermore, Manev provides evidence that optimizing the particle
size and thus the face length through routine experimentation would have
also been obvious to one of ordinary skill in the art. Manev explains that the
mean particle size and the particle size distribution directly influence the
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