Appeal No. 98-0593
Application 08/491,511
A reversal of the examiner’s rejection(s) should not be
construed as an affirmative indication that the appellants’
claims are patentable over prior art. We address only the
positions and rationale as set forth by the examiner and on
which the examiner’s rejection of the claims on appeal is
based.
The anticipation rejection of claims 2, 11 and 12 is
based on the examiner’s erroneous view that prior art
disclosing a broad range which encompasses a narrower range
claimed by the appellants anticipates the appellants’ claims.
Prior art disclosing an average grain size less than or equal
to 15 micrometers does not anticipate the claimed average
grain size in the range from 0.2 to 3.0 micrometers or from
0.5 to 2.0 micrometers. Accordingly, the rejection of claims
2, 11 and 12 as being anticipated by Kugimiya cannot be
sustained.
The examiner’s obviousness rejections of dependent claims
3-6 and 7-10 are premised and dependent on the anticipation
rejection of independent claims 11 and 12. The deficiencies
of Kugimiya is not made up by the examiner’s application of
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