Appeal No. 2001-0233
Application 08/668,640
(v) the specific particulate material used (Appeal Brief, page 10,
lines 18-22).
While we disagree with the contentions of points (1), (2), (3)(i), (3)(iii), (3)(iv), and
(3)(v), we find that point (3)(ii) is persuasive and will therefore reverse this rejection. We
note that Beck teaches that the molecular sieve can be shaped into a wide variety of
particle sizes such as a powder or extrudate which is retained on a 400 mesh screen
(Beck I, column 4, lines 63-68; Beck II, column 5, lines 3-8) which the examiner has
found equates generally to about 55 microns (Final Rejection, Paper No. 21, page 3,
lines 6-7). This general teaching, the Examiner has concluded, is a preferred
suggested range and the selection of size and number of pores would have been
obvious based upon the degree of porosity sought (Final Rejection, page 3, lines 7-11).
Unlike the Examiner, we are unable to equate a particle size of 55 microns (or
greater) to a particle size of less than 10 microns. The teaching of both Beck
references is that the particles may pass through a 2 mesh (tyler) screen and be
retained on a 400 mesh (Tyler) screen (Beck I, column 4, lines 67-68), which is a
substantial departure from a “mean particle size or mean diameter of less than about 10
microns” (claim 1).
The Examiner’s justification for this departure is absent from the Examiner’s
Answer and is found only in the Final Rejection (Paper No. 21) as follows:
The alleged criticality in the quantity of particulate material, as well as its size,
being on the order of 10 microns at most is not suggested by Beck’s 2-450 [sic]
Tyler mesh size range which corresponds to minmally [sic-minimally] about 55
microns. It must be viewed in the context of its being couched in “Generally
speaking” terms and thus clearly is only a preferred suggested range. The size
and number of pores would be obviously contingent upon the degree of porosity
sought which in turn would depend on the end use. No great deal of ingenuity is
seen in making such determination. (Paper #21, page 3, paragraph #5).
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