silicone oil and aluminum oxide. See Example. The product which had an initial bulk
density of 60 g/l was compacted to a bulk density of 80-150 g/l. However, neither
particle size nor structure is discussed by Ettlinger.
The examiner thereafter relies upon references to Kostansek and Bilimoria,
directed to calcined kaolin clay, to show that improvements in reduction of oil
absorption and increase in bulk density are obtained by dry milling the clay. Although
the examiner argues that clays are aluminosilicates, which are oxides of the metals
aluminum and silicon, and would have reasonably been expected to behave like aluminum
oxide and silicon oxide, evidence of record presented as a Declaration under 37 CFR §
1.132 by Nargiello teaches otherwise. The properties of surface area, particle size
and DBP absorption in grams/100g for fully calcined kaolin is substantially different
from values obtained for any of pyrogenic silicon dioxide, aluminum oxide, titanium oxide
or zirconium oxide. See Exhibit C, page 5. Accordingly, we conclude that the person
having ordinary skill in the art would not have a reasonable expectation that
pyrogenic metal oxide would perform in the same manner as calcined kaolin clay based
on the teachings of Kostansek and Bilimoria.
We are accordingly left with the teachings of Perry’s which disclose many of the
specific process conditions required by the claimed subject matter for ball milling.
However, the issue before us is not whether the numerous conditions for ball milling
are known. Rather, it is whether there is recognition, based on the record before
us, that destructuring necessarily occurs upon ball milling the composition of
Ettlinger.
We answer that question in the negative. We determine that there is no recognition in
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