Appeal No. 2002-0928
Application 09/315,251
particles. While Ozaki prepares a dispersion of zirconium oxide
having a particle size of 5 nanometers in water using ultrasound,
there is no evidence in the record which establishes that zirconium
oxide of 5 nanometer particle size as dispersed by ultrasound is a
"nanostructured material." Moreover, the dispersion obtained by
Ozaki is subsequently dropped into a high boiling liquid to drive
off water and form microspheres which ultimately have a particle
size of "about 50 :m." The examiner has not adequately explained
why the routineer would have halted Ozaki's process after forming
the aqueous dispersion of zirconium oxide by ultrasound and then
used the dispersion in Gitzhofer's process for a different purpose
than that intended by Ozaki for their process. Accordingly, we find
that the examiner has failed to make out a prima facie case of
obviousness for the subject matter appellants claim to be their
invention. Because we have found the examiner has failed to make
out a prima facie case of obviousness, it is unnecessary for our
decision to address the declarations under 37 C.F.R. § 1.132 which
represent appellants' evidence of non-obviousness.
NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 1.196(b), we enter
the following new ground of rejection. Claims 1 through 5 and 8
through 12 are rejected under the judicially created doctrine of
obviousness-type double patenting over the claims in U.S. Patent
Number 6,025,034.
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