Appeal 2006-3082
Application 10/372,669
spherically shaped particles and mesh-like formation of string particles” (FF
13).
For the foregoing reasons, we conclude that Horino teaches all
elements recited in claim 2, either inherently or explicitly. Having
established prima facie anticipation, it is Appellants’ burden to prove that
Horino does not possess the claimed characteristic of “a formation of
spherically shaped particles and mesh-like formation of string particles.”
Appellants seek to distinguish Horino’s coated powder from the
claimed composite powder by evidence described in the Specification and
discussed in a declaration under 37 C.F.R. § 1.132 by co-inventor Mr.
Masaakiro Horino (hereinafter “Horino Dec.”), who is also the same
inventor of the cited Horino publication (Horino Dec. ¶¶ 1, 6). The evidence
is comparison between a powder produced according to Example 1 (“Ex. 1”)
of the Specification (Spec. 41-42) which is stated to be within the scope of
claim 2 and a powder prepared according to the process described in Horino
(Comparative Example 1 (“Comp. Ex. 1”) at Spec. 42-43) (Br. 10-11).
Appellants contend that a side-by-side comparison of SEM
photomicrographs of the prior art powder and their own reveals that the
powders have different structures (comparing photomicrographs (Figs. 1 and
2) of the powder of Ex. 1 to photomicrographs (Figs. A1-A3 of the Horino
Declaration) of the powder of Comp. Ex. 1) (Horino Dec. ¶ 6). They also
contend that the powder of Ex. 1 is superior to the powder of Comp. Ex. 1 as
evaluated by frictional coefficient (Reply Br. 2) and other properties
including extension, smoothness, transparency, gloss, natural color, and skin
dimness (Reply Br. 7; Horino Dec. ¶ 6).
7
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