Appeal 2006-2729
Application 10/193,363
art, as seen from cited references at page 4, ll. 1-26, of the Specification, can
use through routine experimentation to practice the invention as claimed (id.
3-10). Appellants point to the specified properties of the functional material
and surfactants specified in the claims and the disclosed examples thereof
coupled with knowledge of dispersed micelle aggregates of materials in CO2
in the art combined with disclosed teachings “with respect to self assembly
formation of dispersed aggregates of less than 10 nm size through selection
of ratios of compressed CO2 and surfactant to functional material” (id. 4-9;
original emphasis deleted). Appellants argue that the combination of
disclosed information and knowledge of the art would enable one skilled in
the art to select suitable functional material and surfactants “from a variety
of materials” (id. 9).
The Examiner responds the “claims would require undue
experimentation” to determine starting material size and the function
parameters for diverse functional materials and surfactants which are
material specific (Answer 8). The Examiner contends the Specification
examples “do not provide a starting particles size or distribution” and do not
provide guidance for selecting “appropriate starting materials” (id. 9; see
also 13-16). The Examiner contends there is no guidance to “select
compressed CO2-philic/functional material-philic compound to form
aggregates of functional material such as those listed” and have “a diameter
of less than 10 nm” (id. 9-10; original footnote omitted). The Examiner
contends that “[o]ne would logically conclude . . . difficultly in a
compressed CO2 systems,” pointing to Myers “wherein characterization of
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