Appeal No. 2000-0822
Application 09/037,555
pages 14-16; reply brief, unnumbered page 6. We determine that the terms in issue are
customarily defined as, e.g., “concave . . . Curved like the inner surface of a sphere;” and,
“concavity . . . 2. A concave surface or structure.” The American Heritage Dictionary, Second
College Edition, page 304. In view of this evidence, we determine that one of ordinary skill in
this art would not have reasonably considered the structure of the carrier used by Shintani to
include a “pore” or “pores.” We are not convinced otherwise on this record, by the examiner’s
contention that “[t]he carrier particles of the reference examples are Cu-Zn ferrites obtained from
Powdertech” which “is the same type of carrier and supplier as used in the instant examples (see
spec. p. 27 et seq.)” (answer, page 17). We find at page 27, lines 26-28, of the specification, the
recitation that “a porous CuZn ferrite powder obtained from Powdertech Corp. and having a
diameter of about 32 microns and a BET surface area of about 1,600 cm2g,” which carrier
particle is consistent with that used in specification Examples II and III (pages 29 and 30). We
find at col. 12, line 35-36, of Shintani, “[s]intered copper-zinc ferrite powder (F-300: mean
particle size: 45 µm, bulk density: 2.50 g/cm3; made by Powdertech Co., Ltd.),” which has the
smallest particle size of the carrier particles carrying the same trade designation in the Shintani
Examples. Thus, the examiner has not established that the particles that Shintani describes as
having concavities would be those described as “porous” by appellants. We find no disclosure in
Yoshino which have suggested to one of ordinary skill in the art that a porous carrier could be
used in the process of Shintani.
Accordingly, we reverse the grounds of rejection of appealed claims 1, 39, 40, 49, 53 and
54 under 35 U.S.C. § 102(b) as anticipated by Shintani, and of claims 1 through 5, 8, 9, 13
through 19, 39, 40, 42 through 45, 47, 49 through 51, 53 through 55 and 57 under 35 U.S.C.
§ 103(a) as being unpatentable over Shintani in view of Yoshino.
In summary, we affirm the ground of rejection of appealed claims 1, 39, 40, 49, 53 and 54
under 35 U.S.C. § 102(b) as anticipated by Kawata, and of appealed claims 1, 39, 40, 49, 53 and
54 under § 103(a) as being unpatentable over Kawata in view of Mammino and further in view of
Creatura, and reverse all other grounds of rejection.
The examiner’s decision is affirmed-in-part.
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