Appeal No. 2005-0209
Application 09/274,014
comprising a main monomer, a passivating monomer and a crosslinking agent, to form an
interactive polymer network that “deactivate” such innate groups and interacts with biological
macromolecules (col. 5, ll. 3-39 and 50-62). Indeed, the passivating mixture forms a three-
dimensional network on the surfaces of the matrix, including the internal surfaces, that is, in the
pores (e.g., col. 6, ll. 20-60, col. 10, l. 62, to col. 11, l. 21). We find that Girot FIG. 5 illustrates
the network on the internal surfaces of a pore (e.g., col. 12, ll. 63-68), and one of ordinary skill in
the art would not have inferred from this disclosure or the disclosure at col. 19, l. 32, to col. 20, l.
16, which also involves the interior or internal surfaces of a pore, that the interactive polymer
network is formed solely on the interior or internal surfaces of the pore. Indeed, we find no
disclosure in the reference which teaches that the innate groups of the solid mineral oxide matrix
that can enter into undesirable interactions are found solely in the interior or internal pore
surfaces of that matrix and not on the exterior or external surfaces thereof, such teachings being
necessary to support appellants’ view of the reference.
Turning now to the pore volume requirement, appellants submit that Girot alone would
not have suggested a pore volume of less than 30% of the total volume of the mineral oxide
matrix because, as established by a declaration by Dr. Boschetti, a patentee in Girot, an applicant
herein and employed by the common assignee,1 “the purpose of [Girot] was to make the pore
volume as large as possible . . . [which] is consistent with calculated pore volumes of 40 to 60%
for Girot” (brief, e.g., page 10). Thus, appellants contend that Girot “relates primarily to porous
silica, for which a porous volume of 0.8 to 1.2 cm3/gr equates to a pore volume of between 0.4 to
0.6 ml per ml of solid material or between 40 and 60%” (brief, page 12). Appellants contend
that the “pore volume of 40 and 60% . . . is in line with” the testimony in the Boschetti
declaration alleged to establishes that “the purpose of the invention in [Girot] was to have a
hydrogel fill the pores entirely, while allowing even macromolecules still to diffuse inside” and
thus the pore volume is “made as large as possible, to maximize the binding capacity of the final
material” (id.). On this basis, appellants submit that Girot “would not have led one of ordinary
skill to decrease porosity, or pore volume below 30%” (id.). Appellants further point to col. 19,
ll. 32-55, and col. 19, l. 62, to col. 20, l. 8, of Girot as being contrary to the claimed invention
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