Appeal No. 2001-0233
Application 08/668,640
Claims 1-4, 7-9, 12, 14, 15, 36, and 37 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Beck II or Beck I in view of Porte, Takeuchi, or Ayama.
Claims 1, 2, 4-9, 12, 14, 36 and 37 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Nishihara.
DISCUSSION
The Invention
The Appellants’ invention relates generally to a preceramic composite
intermediate composition consisting essentially of a mixture of a ceramic precursor and
a non-silicon containing particulate material having a decomposition temperature
greater than 400°C. The mixture has greater than 30 parts ceramic precursor and less
than 70 parts particulate material, uniformly dispersed. Finally, the mean diameter of
the particulate material is less than 10 microns, the composition itself being “capable of”
forming a microporous ceramic product having a surface area in excess of 50 square
meters per gram, and a volume of micropores greater than about 0.015 square
centimeters per gram.2 (Appeal Brief, page 2, lines 10-21).
The Rejection of Claims 1-4, 6-12, 15, 36 and 37 Under 35 U.S.C. § 103(a)
over Takeda, alone or taken with Yamamoto3
The Examiner has found that Takeda discloses a composition including
(i) oxidatively resistive organo silicon polymers (the claimed ceramic precursor
2 We question the accuracy of this statement as recited in the Appeal Brief and claim 1 appended thereto,
as volume is measured in cubic centimeters (cm3).
3 The Appellants challenge the applicability of several of the prior art references including Takeda under
35 U.S.C. § 103, stating that the filing date of their application precedes the issue date of the references.
It is well settled law that, where a reference is available under 35 USC § 102(e), it is also available under
35 U.S.C. § 103. See Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 147 USPQ 429 (1965).
Therefore, these references are available as prior art. Each of the applied references in question has a
filing date which antedates the Appellants’ earliest claim of priority.
3
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