Appeal No. 2004-1983 Page 7
Application No. 10/016,903
emulsification is carried out using a homomixer or stronger treatment.” In my opinion,
the majority distinction is based solely on Kakoki’s use of relative terminology in
describing the shear force of one device as “strong” or “stronger” than another device.
Appellants also recognize Kakoki’s use of relative terminology. According to appellants
(Request for Rehearing, page 2), Kakoki “clearly talks about ‘stronger shearing force
than a homomixer’ (note the comparative term), which does not imply that a homomixer
does not also apply a strong shearing force, or a high shear … force….” I note,
however, that the comparative, or relative terminology also does not imply that a
homomixer provides as high a shear force as a nozzle, rotor-stator or ultrasound
homogenizer, which are the only devices identified by the majority that define the upper
limit of the genus of devices that read on appellants’ claimed invention.
Unlike Kakoki4, appellants’ specification provides no disclosure of the devices, or
the operating conditions of the devices that are included within the genus of devices that
are capable of performing step (β) of their claimed invention. As discussed above, as
the majority recognizes, the specification simply exemplifies a magnetic agitator and
discloses in relative terms that the upper limit of devices capable of performing step (β)
is a device that produces less shear force than a nozzle, rotor-stator or ultrasound
homogenizer. As Kakoki teaches, a homomixer produces less shear force than an
4 See Kakoki, page 4, lines 37-42:
The “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, Disper, a propeller type mixer) conventionally used in the production of
cosmetics. Examples of such emulsifiers are a high pressure homogenizer … preferably
operating under a pressure of 500 psi or more, more preferably 2000 psi or more, a
colloid mill preferably operating at 1000 rpm or more, more preferably 5000 rpm or more,
or an ultrasonication emulsifier.
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