Appeal No. 95-0922
Application No. 08/082,907
correspond to the sizes and quantities of the here claimed
intermediate, large and small particle fractions. While certain
of patentee's size ranges may overlap slightly with certain of
the here claimed size ranges, no basis exists for concluding that
his material contains the percentages of large and small particle
size fractions defined by appealed claim 1. In fact, such a
conclusion is contrary to Borchardt's disclosure that his
material contains substantial amounts or quantities of the flake,
fiber and granule fractions (again see lines 28 through 42 in
column 3).
In light of the foregoing, it is clear to us that the
examiner's inherency position is unjustified and accordingly that
his consequent rejection under 35 U.S.C. § 102(b) of claims 1
through 3, 6 and 7 as being anticipated by Borchardt cannot be
sustained.
The above noted section 103 rejection of claims 4 and 5 also
cannot be sustained because it is ultimately premised upon the
examiner's unacceptable inherency position discussed above.
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