Appeal 2007-4227
Application 10/409,417
Any argument not made in the principal brief on appeal (or when
responding to a new ground of rejection, in the Reply Brief) is waived.
37 C.F.R. § 41.37(c)(1)(vii). In particular, if claims are not argued
separately, they stand or fall together. Id. The procedural burden is on the
Applicants to show reversible error by the Examiner.
Kutilek has not challenged the Examiner's substantive findings of fact
as to what Chopin teaches expressly. The Examiner and Kutilek appear to
part ways as to what one of ordinary skill in the art would make of the
disclosure, and on the role of inherency in an anticipatory reference.
Because Kutilek has not disputed the Examiner's findings with particularity
as to the limitations of the dependent claims, all the claims effectively stand
or fall with claim 1. In this posture, the dispositive issue is whether Kutilek
has shown that the Examiner erred in applying the theory that the shift of the
temperature of the amorphous-to-crystalline transition is inherent in the
doping of the TiO2 with metals.
We find the Examiner's position as to claim 1, that the addition of
metal dopants to the TiO2 necessarily—inherently—shifts the amorphous to
crystalline transition temperature, highly plausible. As the Examiner pointed
out (FF 33; Answer at 3), Chopin teaches that "at least a portion of the
titanium dioxide particles of the coating can comprise, in their crystal lattice,
metal ions chosen from iron, copper, ruthenium, molybdenum, bismuth,
tantalum, niobium, cobalt, nickel or vanadium." (FF 23; Chopin at
4:36-40, emphasis added—bold indicates metals also recited in claim 1). In
this passage, Chopin teaches that the dopant metals are incorporated into the
TiO2 crystal lattice.
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