Ex parte VACCA et al. - Page 4

          Appeal No. 94-4172                                                          
          Application 08/001,854                                                      


                    “Inoue et al place no limits on the amount of                     
                    colloidal silica to be used in their                              
                    protective layers and thus the exact amount                       
                    for any application becomes an ordinary                           
                    design variable subject to ordinary                               
                    optimization procedures using the value                           
                    exemplified as a starting point” (Answer,                         
                    page 6).                                                          

          Implicit in this contention is the belief that such                         
          “optimization” of the colloidal silica amount to be used in                 
          patentee’s protective layer would yield a coverage value within             
          the here claimed range.  The record before us contains no                   
          evidence to support this belief.                                            
               It is significant that the appellants and Inoue use                    
          colloidal silica in their respective protective layers for                  
          different reasons.  As previously indicated, the appellants use             
          colloidal silica in order to improve maximum optical density and            
          exposure latitude.  On the other hand, patentee uses colloidal              
          silica as a matting agent (see lines 39 through 41 in column 31)            
          in order to prevent sticking (see lines 19 through 23 in column             
          21).  Because the appellants and Inoue use colloidal silica for             
          different reasons, it cannot be assumed that the amount necessary           

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