Appeal No. 98-0140
S.N. 08/401761
it, would encompass all elements to the right of cobalt,
and no conflict exists for elements between calcium and
cobalt with respect to MoKa rays. So, it appears to us
that the examiner is correct in his assessment of Stout.
However, because the Stout reference does not address the
type of radiation used in making X-ray diffraction
measurements of titanyl phthalocyanine crystals
specifically, we cannot accord it as much evidentiary
weight as other references that specifically address the
types of radiation used in X-ray diffraction measurements
of titanyl phthalocyanine crystals.
With regard to the Rule 132 Nukada Declaration, the
examiner asserts that the experiments do not show that
CuKa radiation was in fact employed for Example 1 of
appellants’ application; rather, the examiner asserts that
the experiments in this declaration concern the prior art.
(Answer, pages 8-9).
Upon our review of this declaration, we find that
pages 2 and 3 indicate that an X-ray diffraction pattern
was obtained for an oxytitanium phthalocyanine crystal
disclosed in Fig. 2 of Suzuki (prior art reference)
utilizing CuKa radiation. The resulting X-ray diffraction
pattern is shown in Fig. 1 of the declaration. Pages 6-7
of the declaration also indicate that an X-ray diffraction
pattern was obtained for the a-titanyl phthalocyanine
crystal disclosed in Fujimaki (prior art reference)
utilizing CuKa radiation. The resulting X-ray diffraction
pattern is shown in Fig. 4 of the declaration.
Hence, the Rule 132 Nukada Declaration evidences that
one of the inventors of the present invention utilized CuKa
radiation in making X-ray diffraction measurements of both
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