Appeal No. 2004-1983 Page 6
Application No. 10/016,903
majority makes no attempt to establish a nexus between a homomixer and a “nozzle,
rotor-stator or ultrasound”, the majority finds (id.), the use of a “magnetic agitator” in
appellants’ examples are consistent with appellants’ disclosure (page 2, last paragraph,
emphasis added) that “it is possible to forego homogenization via nozzle, rotor-stator or
ultrasound homogenisers….” I recognize, however, that the majority stops short of
stating that the scope of devices that can be used in step (β) of appellants’ claimed
invention is limited to a “magnetic agitator.” Thus, the question becomes -- what is
included within the scope of step (β)? While they make no effort to explore the scope of
the phrase “absence of high shear … force[ ]”, the majority is apparently of the opinion
that the scope of this phrase includes mixing with devices that produce a shear force in
the range of a magnetic agitator up to something less than, for example, an ultrasound
homogenizer.
Interestingly enough, Kakoki teaches that a homomixer produces less shear
force than an ultrasound homogenizer. According to Kakoki (page 4, lines 37-42,
emphasis added), “[t]he ‘strong shearing force treatment’ used herein means the
treatment in which an emulsifier capable of providing a stronger or higher shearing force
than a mixer (e.g., a homomixer…) conventionally used in the production of cosmetics.
Examples of such emulsifiers are … an ultrasonication emulsifier.”
Nevertheless, the majority attempts to distinguish a homomixer from appellants’
claimed invention by finding (supra, pages 2-3), Kakoki teach that a dispersion is
subjected “to a strong shearing force by, for example, an emulsifier capable of providing
a shearing force, such as a homomixer”; and that “in all of Kakoki’s working examples,
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