Appeal No. 96-0150
Application No. 07/969,244
As appellants point out in their brief, Sasagawa
discloses carbon blacks (furnace blacks) for use in
reinforcing rubber elastomers, which carbon blacks are
described as having improved dispersion properties.
Appellants assert that the improvement in the dispersion
properties of Sasagawa’s inventive carbon blacks is a result
of their large aggregate size and wide aggregate size
distribution, in contrast to the claimed carbon black which
has a small aggregate size (ASTM Aggregate Volume less than
137,000(nm) ) and a narrow aggregate size distribution ()D503
of less than 40 nm). See the brief at page 8, line 25 to page
9, line 4. Factual support for appellants’ assertions
regarding the above properties of Sasagawa’s carbon blacks is
found in the reference at pages 2 and 3. Further, the
examiner points to no disclosures in Sasagawa, nor does the
examiner technically explain why "the other properties"
(inclusive of the ASTM Aggregate Volume) of Sasagawa’s carbon
blacks are inherently the same as the claimed carbon black.
See the answer at page 2. It is well settled law that the
inherent properties of a prior art embodiment, which are
questions of fact, cannot be established by "probabilities or
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