Ex parte AKIOKA et al. - Page 6




          Appeal No. 1996-1777                                       Page 6           
          Application No. 08/034,009                                                  

          and the process of producing the magnet of Akioka '797 is                   
          substantially the same as that of appellants except for the                 
          strain rate limitation.                                                     
               The flaw in the examiner's position, however, is that                  
          appellants have reasonably established, on the present record,              
          that variations in the strain rate during the manufacturing                 
          process results in product magnets with different properties                
          (See, e.g., Table 13, specification, page 30).  On this                     
          record, the examiner has not established that any of the                    
          magnet compositions disclosed by Akioka '797 are both                       
          identical in composition and properties with the magnets                    
          encompassed by claim 24.  Nor has the examiner furnished any                
          convincing line of                                                          
          reasoning suggesting the obviousness to one of ordinary skill               
          in the art of the product defined by claim 24 in light of the               
          teachings of Akioka '797.                                                   
               Similarly, the examiner's stated rejection of claim 24 as              
          being unpatentable under  103 over Kobayashi falls short of                
          presenting a prima facie case of obviousness.  This is so                   
          since Kobayashi, like Akioka '797 does not teach the claimed                
          strain rate and the examiner has not established that the                   








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