Appeal No. 1997-3813
Application No. 08/371,205
failed to show any reasonable expectation, or some
predictability, that Takata’s calcined and sintered materials
would be effective as a packing for liquid chromatography when
the sizes of the crystalline particles are optimized for use
as a filling in a bone cavity or as a prosthetic member of
bones. In re Shetty, 566 F.2d 81, 86, 191 USPQ 753, 756-57
(CCPA 1977). Nor has the examiner presented any evidence to
establish that the optimized range of crystalline particle
sizes for the purpose of Takata would at least generically
encompass the appellants’ range of average crystalline
particle sizes. Cf. In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936 (Fed. Cir. 1990).
For these reasons, we hold that the examiner has failed
to establish a prima facie case of obviousness against
appealed claim 62 over Takata within the meaning of 35 U.S.C.
§ 103.
Lastly, we consider the examiner’s § 103 rejection of
appealed claim 62 over Kawasaki in view of Kirkland. The
examiner states that “[a]t best, the claim differs from
Kawasaki (Eur. J. Biochem. 157, 291-295 (June 2, 1986)) in
evidencing the pore size and the new limitation of a particle
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