Appeal 2006-2490
Application 10/238,791
We do not find the Jacobsen Declaration convincing. As correctly
stated by the Examiner (Answer 5-6), the data presented in the Declaration is
not commensurate in scope with the claims sought to be patented.
Specifically, the Declarant states that “in over 200 runs of titanium
tetrachloride and liquid sodium and in some cases, titanium tetrachloride
with other chlorides to make titanium alloys” at temperatures of about 220 to
about 700 șC., a sodium side pressure of from about 40 kpa to about 300
kpa, and a titanium tetrachloride flow rate of about 0.44 kg/m to about 5.5
kg/m” a gel is formed (¶ 5 and 8). However, the claims on appeal are not
limited to these specific reactants and reaction conditions (e.g., see claim 95
on appeal which is not limited to titanium, a chloride, or liquid sodium,
much less any reaction condition; see the Specification 15). Additionally,
we determine that the Declarant states that “[u]pon filtration of the slurry
produced by the Armstrong Process, a gel forms that is an inherent property
of the process, as a gel always occurs” (¶ 10, italics added). Therefore the
Declarant finds that a gel is always “formed on the filter” (¶ 8, italics
added). However, the use of a filter is not recited in the claims, but only the
generic step of “separating” (e.g., see claim 95 on appeal). Thus the claim is
not limited to a filtration step. Appellants’ Specification teaches that the
product can be removed from the bulk sodium stream by “conventional
separators” such as cyclones, particulate filters, magnetic separators, or
vacuum stills (Specification 7-8). Accordingly, we do not find that the
Jacobsen Declaration evinces that gel formation always, or inherently,
occurs in the process as claimed.
Finally, we find that Appellants’ Specification contradicts the
Jacobsen Declaration in that there is a specific disclosure that “[i]n the third,
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