Appeal No. 1997-3813
Application No. 08/371,205
particle size would necessarily remain unaffected by the
calcining and sintering described in Takata. In this regard, 2
it is well settled that inherency may not be established by
probabilities or possibilities and that it is insufficient to
merely show that a certain thing may result from a given set
of circumstances. Mehl/Biophile, 192 F.3d at 1365, 52 USPQ2d
at 1305; In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326
(CCPA 1981); Hansgirg v. Kemmer, 102 F.2d 212, 214, 40 USPQ
665, 667 (CCPA 1939).
Moreover, appealed claim 62 recites that the “porous
calcium phosphate based granules having open pores with an
2In any event, the appellants have submitted evidence,
which was entered into the record (papers 19 and 20),
indicating that the sintering of hydroxyapatite increases
grain size. T. Kijima and M. Tsutsumi (Kijima), “Preparation
and Thermal Properties of Dense Polycrystalline
Oxyhydroxyapatite,” 62 J. Am. Ceram. Soc., nos. 9-10, 455-460,
457 (1979). The examiner, however, argues (supplemental
answer, p. 3) that (i) Kijima is not relevant because it is
directed to discs 10 mm in diameter and 1.6 mm thick, (ii)
Kijima relates to oxyhydroxyapatite rather than
hydroxyapatite, and (iii) the change in particle size in Table
I of Kijima is negligible. However, we share the appellants’
view (second reply brief, pp. 2-3) that the examiner’s
arguments are unavailing. Moreover, we observe that Kijima
teaches that the calcination of hydroxyapatite particles
results in a significant increase in particle size. (Kijima,
p. 457.) We find it significant that the formation of the
discs described in Kijima is conducted after calcination.
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