Appeal No. 96-2323
Application 08/116,555
1, lines 44-47). In appellants’ example 1 used in the Kanda
declaration, the emulsion was kept at 50°C (specification,
page 8). There is no indication of an inability to control
the reaction exotherm.
For the above reasons, we are not convinced that
appellants did not compare their claimed invention to the
closest prior art.
The examiner argues that because Fan teaches (col. 1,
lines 44-47) that the reaction exotherm, which is dependent
upon the reaction rate, and the extent of the agglomeration
are related, the Kanda declaration does not show unexpected
results (answer, page 12). The examiner argues that Fan
teaches that the reaction rate and exotherm are affected by
the dissolved oxygen concentration and that, consequently, it
would have been obvious to one of ordinary skill in the art to
reduce the dissolved oxygen concentration to the low level
recited in appellants’ claim 1 to avoid forming agglomerates
(answer, pages 11-12).
The examiner’s argument is not consistent with the
evidence before us. Indeed, Fan teaches that an inability to
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