Appeal No. 94-0822
Application No. 07/801,992
Regarding the examiner's rejection of claim 38 under
35 U.S.C. § 112, fourth paragraph, it is the examiner's
position that claim 38 improperly depends upon more than one
claim. Appellants, at page 5 of their Reply Brief, apparently
acknowledge the propriety of the examiner's rejection and are
prepared to amend claim 38 accordingly. Accordingly, we will
sustain the examiner's rejection.
We now turn to the examiner's prior art rejections of the
appealed claims. The examiner acknowledges that none of the
applied references discloses the preparation of the presently
claimed composite particles comprising a plurality of
polymeric latex particles adsorbed onto a titanium dioxide
particle. However, the basis of the examiner's rejection is
that each of the references discloses the preparation of an
aqueous dispersion of polymeric latex particles and pigment
particles that inherently contain the structure of appellants'
composite particles.
It is well settled that a determination of inherency
cannot be established by probabilities or possibilities. In
re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981).
In order to establish inherency, it is incumbent upon the
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