Appeal No. 95-4570
Application No. 08/047,188
these claimed steps. Manifestly, there is no factual support for
the examiner's conclusion that the appealed claims are described
by the patent within the meaning of 35 U.S.C. § 102, or rendered
obvious for purposes of obviousness-type double patenting by
claims 1-28 of the patent. While the examiner states that "[t]he
issue of toner color is not patentably distinct" (page 7 of
Answer), the issue properly argued by appellants is that U.S.
Patent No. 5,532,100 fails to describe or suggest the claimed
steps of uniformly mixing and charging first and second
differently colored toner powders.
Likewise, Fotland provides no teaching or suggestion of the
claimed steps of uniformly mixing and charging first and second
differently colored toner powders. Fotland's only mention of
colored toners is in the cautionary statement that "conductive
toners can limit printing quality when colored toners are
utilized" (column 1, lines 32 and 33). While the examiner
reasons that "toners having uniform physical characteristics
would be expected to perform similarly in a charged fluidized bed
and the associated method of applying toner" (sentence bridging
pages 5 and 6 of Answer), the reference provides no teaching or
suggestion of uniformly mixing and charging toners of different
color having uniform physical characteristics. At best, the
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