Appeal No. 1997-0818
Application No. 08/102,470
graphite when heated above 1000EC and that diamond oxidizes at
temperatures above about 600EC (see MacKenzie at column 2,
lines 62 through 67), it is clearly MacKenzie’s purpose to
both avoid oxidation and graphitization when heating the
porous composite. Compare MacKenzie at column 6, lines 31
through 43; column 7, lines 32 through 37; MacKenzie’s
patented claims 1 and 15. Thus, the examiner’s ultimate legal
conclusion of obviousness based primarily on the MacKenzie’s
disclosures is based on an erroneous factual finding, i.e.,
that MacKenzie’s diamond particles are “particles of a
combustible material” which are burned away “in either air or
oxygen” during the heating of the ceramic composite. The
examiner’s stated obviousness rejection of the appealed claims
based on MacKenzie is further undermined by MacKenzie’s
failure to disclose that any porous ceramic composite
incorporating diamond therein possesses a bimodal pore size
distribution as required by the appealed process. Since the
examiner’s “secondary reference” to Fox has not been relied on
in the manner which remedies the basic deficiencies in
MacKenzie, we are constrained to reverse the stated rejection
of the appealed claims based on the combined teachings of
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