Ex Parte Kutilek et al - Page 13

                Appeal 2007-4227                                                                             
                Application 10/409,417                                                                       
                      The technical basis of the Examiner's conclusion is readily apparent:                  
                because the metals differ in their atomic numbers, the number of electrons,                  
                the configuration of electrons in the ionic core, etc., each metal would have                
                an effective radius and an effective charge that would be expected to differ                 
                from the corresponding values for titanium in titanium dioxide.  Thus, the                   
                presence of a dopant metal would have been expected to change the energy                     
                and perturb the structure of the TiO2 lattice.  These changes would have                     
                been expected to manifest themselves in the properties of the lattice, in                    
                particular, in the temperature at which an orderly, crystalline lattice would                
                form from a relatively disordered, amorphous state.4  In any event, we                       
                observe that claim 1 requires only a "shift," not a decrease, of the transition              
                temperature5.                                                                                
                      We conclude that the Examiner's rejection based on inherency is well-                  
                founded.  In the alternative, the Examiner has a sound basis for concluding                  
                that the process of the prior art is the same or substantially the same as the               
                process claimed by the Applicants.  In any event, Kutilek has not made any                   
                                                                                                            
                4 The effect of dopants on transformations between different crystalline                     
                forms of  TiO2 is well known, as shown by Terry A. Egerton, Titanium                         
                Compounds, Inorganic, 24 Kirk Othmer Encyclopedia of Chemical                                
                Technology, 225, 235 (4th ed. 1997): “It is accepted that, at normal                         
                pressures, rutile is the thermodynamically stable form of titanium dioxide at                
                all temperatures.  Calorimetric studies have demonstrated that rutile is more                
                stable than anatase . . . The rate of transformation is critically dependent on              
                the detailed environment and may be either promoted or retarded by the                       
                presence of other substances.  For example, phosphorus inhibits the                          
                transformation of anatase to rutile.”  (Emphasis added; citations omitted.)                  
                5  We note that Kutilek's specification appears to mention expressly only                    
                instances in which the transition temperature is decreased: see, e.g., the                   
                417 Application at 9, ¶ 22, at 10, ¶ 25, at 14, ¶ 33.                                        
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