Appeal No. 1997-3813
Application No. 08/371,205
average pore size of from 0.01 to 20 Fm.” (Underscoring
added.) As pointed out by the appellants (appeal brief, page
10), Takata teaches that “the micropores have a distribution
of diameters in the range from 0.01 to 0.1 mm [10 to 100 Fm].”
(Underscoring added; column 2, lines 38-40.) The examiner,
however, has not explained how Takata’s description with
respect to a distribution of diameters for the micropores
meets the claim element regarding average pore size.
Under the circumstances recounted above, we cannot agree
with the examiner that Takata describes each and every element
of the invention recited in appealed claim 62.
Turning to the examiner’s § 103 rejection based on
Takata, the examiner states: “It would have been obvious to
optimize the elements of Takata (U.S. Patent No. 4,629,464) to
enhance the physical properties of Takata (U.S. Patent No.
4,629,464)’s apatite.” (Examiner’s answer, pages 3-4.)
However, we share the appellants’ concern (appeal brief, page
13) that the examiner has neither identified the “elements” of
Takata nor presented any evidence to establish that such
optimization would have been obvious to a person having
ordinary skill in the art. In particular, the examiner has
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