Appeal No. 2007-0056 Page 15
Application No. 09/906,511
of a polystyrene particle instead of a latex particle would have been prima facie
obvious in view of the combination of references relied upon. FPA is simply
another instrument to measure particle size distribution. In our opinion, on this
record, the recognition in the art of yet another instrument to measure particle
size distribution, without more, does not lead to a conclusion that the reference
teaches away from its combination with Kosako, ‘211, and ‘978.
As discussed above the combination of Kosako, ‘211, and ‘978 render the
invention of claim 1 prima facie obvious to a person of ordinary skill in the art at
the time the invention was made. Regarding claim 8, which depends from
claim 1, the examiner finds that Hansen teaches the a polystyrene particle can
be used in place of a latex particle as required by appellants’ claim 8. Beyond
establishing that Hansen uses a different instrument to measure particle size
distribution, appellants’ have not provided any evidence or argument as to why it
would not have been prima facie obvious to modify the method taught by the
combination of Kosako, ‘211, and ‘978 to use a polystyrene particle instead of
latex or latex polystyrene particle.
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