Appeal No. 2005-1332 Page 6
Application No. 09/774,064
an amount of 3-30% by weight of the pigment and concludes, therefore, that the inorganic
pigment must be present in an amount of 70-97% by weight of the pigment in that preferred
embodiment (Answer, p. 3). Appellants traverse this finding on the basis that “this is not the
literal disclosure of Hoshino.” (Brief, p. 4). Appellants’ traversal is not persuasive because, even
though Hoshino does not say it literally, the disclosure is present. The pigment of Hoshino is a
combination of inorganic pigments and the emulsion particles as “plastic pigment” (Hoshino, ¶
0016, ll. 6-9). The amount of emulsion particles is related in Hoshino as a percentage of the
“entire pigments.” (Hoshino, ¶ 0017, ll. 1-4). Therefore, the percentage of inorganic pigments is
the amount which is not emulsion pigment.2 We, therefore, find adequate factual support in
Hoshino for the finding made by the Examiner, i.e., that Hoshino describes by default including
inorganic pigment in an amount of from between 97 and 70% by weight of the entire pigment in
the preferred embodiment. That Hoshino includes other less preferred embodiments and
examples does not, contrary to the arguments of Appellants (Brief, p. 5), somehow negate the
disclosure of the preferred embodiment.
2The words “entire pigments” would be understood by one of ordinary skill in the art to
be referring to the combination of emulsion particles as plastic pigments and inorganic pigments.
This is the case because inorganic and plastic pigments are the only components that make up
the pigment. In fact, the plastic pigments are said to be a replacement for inorganic pigments
(Hoshino, ¶ 0002, ll. 4-7). Also note that Hoshino calculates the quantity of other components
based on the combined amount of inorganic and plastic pigments (Hoshino, ¶ 0016, ll. 19-22).
Moreover, the formulation provided on page 22 of the translation of Hoshino further validates
the Examiner’s interpretation of the reference as the pigment amounts (clay, calcium carbonate
and emulsion particles) add up to 100 parts by weight.
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