Appeal No. 1996-2530
Application 08/246,324
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Under ' 103, the scope and content of the prior art
are to be determined; differences between the prior
art and the claims at issue are to be ascertained;
and the level of ordinary skill in the pertinent art
resolved. Against this background, the obviousness
or nonobviousness of the subject matter is
determined.
Graham v. John Deere, 148 USPQ 459, 467 (US 1966).
In determining the scope of the prior art, examiner
makes this statement:
Wood discloses a process of preparing a
structure containing an organic foam and a metal
cation salt in some type of carrier or solvent,
adding citric acid and ethylene glycol thereto,
heating to dissolve the carrier, and calcining the
resultant foam, leaving as a product a ceramic or
metal powder (see example 3 of Wood).
Examiner's Answer, p. 3.
In ascertaining the differences between the prior
art and the claims at issue, this statement is made:
The appealed claims differ from the prior art [Wood]
in that the specific heating and/or calcining
temperatures presently claimed are not disclosed in
the prior art, and the exact solvents recited in
appealed claims 16-18 are not specified in the prior
art.
Examiner's Answer, p. 3. With regard to this statement,
we point out that claim 1, the representative claim, does
not provide specific temperatures or exact solvents.
Therefore, this distinction is not determinative of the
prima facie case of obviousness.
In resolving the level of ordinary skill in the
pertinent art, nothing is stated.
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