Appeal No. 2004-1983 Page 5
Application No. 10/016,903
ADAMS, Administrative Patent Judge, dissenting.
As I understand it, the only issue presented for our reconsideration is whether the
recitation “absence of high shear” force, as it appears in step (β) of appellants’ claim 32,
limits the scope of the claimed invention to preclude the use of a homomixer as taught
by Kakoki. See e.g. Request for Rehearing, page 4. As explained in the Decision3
Applicants’ argument to the contrary, notwithstanding, we find that …
Kakoki does not equate the use of a homomixer with high shear mixing.
Rather, as seen from the above-quoted passages, the reference draws a
contrast between “a homomixer, conventionally used in the production of
cosmetics” and “an emulsifier capable of providing a stronger shearing
force than a conventional homomixer.” A “strong shearing force
treatment,” according to the reference, means treatment using an
emulsifier capable of providing a stronger or higher shearing force than a
conventional homomixer. For example, a “strong shearing force
treatment” is provided by Manthon Gaulin high-pressure homogenizer [or
an ultrasonication emulsifier].
Apparently recognizing the lack of any evidentiary basis in this record to support the
assertion that the phrase “absence of high shear” force excludes a homomixer,
appellants attach several pieces of new evidence to their Request for Rehearing. I
agree with the majority (see supra n. 2) that this new evidence should not be
considered. Thus, there remains no evidence on this record to suggest that the phrase
“absence of high shear” force excludes a homomixer. Accordingly, I dissent.
To make up for the lack of evidence in support of appellants’ arguments, the
majority points out (supra, page 3), appellants’ specification discloses, “it is possible to
forego homogenization via nozzle, rotor-stator or ultrasound homogenisers.” While the
3 Mailed November 24, 2004.
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