Ettlinger of making a low structure pyrogenic metal oxide. Nor is there, on the
record before us, any evidence that the structure of a pyrogenic oxide is necessarily
lowered by
dry milling. Indeed, the only evidence of record would appear to suggest that dry
milling does not necessarily result in lowering of structure. See specification,
pages 18 and 19.
Stated otherwise, the examiner suggests that based upon the prior art one would
have been motivated to optimize the instant parameters of the milling process in
accordance with the teachings of Perry’s. See Answer, page 6. However, we
determine that there is no suggestion or motivation to optimize the ball milling process
of Ettlinger. Nor, on the record before us, is there any reasonable expectation that
even if the ball milling process was optimized that one would necessarily obtain a
destructuring of the pyrogenic oxide.
We further conclude that the prior art would not have suggested to those of
ordinary skill in the art that they should make the claimed subject matter and would
not have revealed that in so making or carrying out, those of ordinary skill in the art
would have had a reasonable expectation of success. See In re Vaeck, 947 F.2d
488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991).
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