Appeal No. 96-1231
Application 08/165,143
range of 0.05 to 2. The examiner argues (answer, page 4) that
in a paper filed in the prosecution of the application which
issued as Cava ‘755, i.e., paper no. 6, filed June 6, 1994,
appellants acknowledged that carbon is frequently associated
with boron. In this paper (page 2) and in appellants’
specification (page 3, lines 22-25), appellants acknowledge
the existence of commercially available
99.6% pure boron wherein the impurities include 0.17% carbon.
Appellants do not state whether these percentages are atomic
percent or weight percent. In either case, a carbon to boron
ratio of 0.0017:0.996 is, as argued by appellants (brief, page
3), much less than the minimum atomic ratio of 0.05:1 required
by appellants’ claims. For this reason and because the
examiner has not explained, and it is not apparent, why the
subject matter of claim 1 of Cava ‘755 would have fairly
suggested, to one of ordinary skill in the art, adding
additional carbon to the material such that it has at least
the minimum carbon to boron atomic ratio required by
appellants’ claims, we do not sustain the obviousness-type
double patenting rejection of appellants’ claims 1 and 3-6
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