OPINION
We have carefully considered all of the arguments advanced by appellants and
the examiner and agree with appellants that the aforementioned rejection under 35
U.S.C.
§ 103 is not well founded. Accordingly, we do not sustain the examiner's rejection.
The Rejection under § 103
“[T]he examiner bears the initial burden, on review of the prior art or on any
other ground, of presenting a prima facie case of unpatentability.” See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). The examiner
relies upon a combination of five references to reject the claimed subject matter and
establish a prima facie case of obviousness. The basic premise of the rejection is that
the primary reference to Ettlinger discloses a method for ball milling a composition
containing pyrogenic silicon dioxide. According to the examiner, the balance of the
references taken together discloses that the ball milling process of Ettlinger
necessarily results in producing a pyrogenic metal oxide having a low structure,
reduced particle size/aggregate size and increased bulk density. We disagree.
Ettlinger discloses ball milling a composition containing pyrogenically produced
silica. Other requisite ingredients include precipitated silica, a hydrophobization agent
such as
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Last modified: November 3, 2007