Appeal No. 97-2359
Application 07/894,260
claim limitation influences the function of the claimed
particles.
Neither the ‘962 application nor Chagnon discloses
forming particles by use of a porous membrane as disclosed in
the present application, and neither teaches that the
particles produced have a substantially mono-dispersed
particle size. Since the examiner has not explained why a
cluster of inorganic oxide particles of substantially mono-
dispersed particle size would have been obvious to one of
ordinary skill in the art in view of the claims of the ‘962
application or Chagnon, the obviousness-type double patenting
rejections are reversed.
DECISION
The rejections under 35 U.S.C. § 103 of claims 62-64 over
Whitehead, Lee ‘904 and Lee ‘492, and of claims 66-68 over Yen
and Czerlinski, are affirmed. The provisional rejection of
claims 62-65 and 70-78 under the judicially created doctrine
of obviousness-type double patenting over claims 1-31 of the
‘962 application, and the rejection of claims 62-65 under the
judicially created doctrine of obviousness-type double
patenting over claims 1-12 of Chagnon, are reversed.
-9-9
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