Appeal No. 96-0821
Application 07/973,870
sustain the examiner's rejection of claims 12 through 22 under
35 U.S.C. § 103 as unpatentable over Flood.
Considering now the rejection based on Styron, we emphasize
that each appealed claim recites a pozzolanic composition
comprising from 50% to 80% by weight of silica fume. Manifestly,
the Styron reference is insufficient to support a conclusion of
obviousness of claims containing that limitation. Styron
discloses an admixture containing fly ash, cement and silica fume
dust. The silica fume dust, however, is used in relatively small
amounts, far less than "from 50% to 80% by weight" of the
pozzolanic composition recited in the independent claims before
us. Having reviewed the Styron reference in its entirety,
including section c entitled "[T]he Filler Component" (column 8,
line 42 through column 9, line 55) and EXAMPLES 1 through 5, we
find that Styron does not disclose or suggest the relatively high
concentrations of silica fume recited in the appealed claims.
The examiner acknowledges the difference between the amounts
of silica fume recited in claims 12 through 22 and the amounts of
silica fume dust disclosed by Styron. According to the examiner,
While concentration of silica fume in Styron may not be
identical to the present invention, changes in
temperature, concentrations, or other process
conditions of an old process does [sic] not impart
patentability unless the recited ranges are critical,
i.e., they produce a new and unexpected result. In re
Aller et al. (CCPA 1955) 220 F2d 454, 105 USPQ 233.
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