Appeal No. 1999-1460
Application No. 08/070,859
the phrase in question. If anything, these disclosures support
the examiner’s position that an artisan would not be able to
recognize and/or achieve the formation of a “regular aggregate
structure.”
For example, a comparison of the last full paragraph on
specification page 8 with the paragraph bridging specification
pages 8 and 9 reveals that a “regular aggregate structure” is
formed when two compounds are fused and then “rapidly cooled”
(specification, page 8, line 16) whereas, “when the fused
compounds are gradually cooled, the aggregate structure of the
two compounds is not generally formed” (specification, page 8,
lines 21-23). Notwithstanding the pivotal importance of rapid
versus gradual cooling in achieving a “regular aggregate
structure,” we find nothing and the appellants point to nothing
in their specification disclosure which would enable the artisan
to determine whether a specific degree of cooling would achieve
the desired structure or for that matter to determine whether the
product of the cooling step indeed possessed the desired “regular
aggregate structure.”
In an effort to assess the meaning of the claim phrase under
consideration, the examiner has questioned the appellants as to
whether a “regular aggregate structure” relates to a crystallized
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