Appeal 2007-0121
Application 10/324,594
would have been suggested by this disclosure and would have been well
within the skill level of an ordinarily skilled artisan. This skill level is also
evidenced by Appellants’ acknowledgements that any conventional
separation means and that any conventional crushing means can be used to
obtain the required selectively crushed perlite particles.
As for Appellants’ reference to Exhibit A, said to be attached to an
amendment dated October 27, 2005, we note that Appellants’ Brief does not
include a copy of such an Exhibit and provide a statement setting forth
where in the record that evidence was entered in the record by the Examiner
as part of an Evidence Appendix, as is required. See 37 C.F.R. §
41.37(c)(ix) (2006). Indeed, Appellants state “None” in describing the
evidence being relied upon in the Evidence Appendix. Thus, given
Appellants Evidence Appendix statement, this evidence is not properly
before us for our consideration.4
In any event, we note that Appellants’ Specification discloses that
expanded perlite is commercially available in small sizes, including sizes
that Appellants’ find useful in the claimed invention. See Examples 1 and 2
of the Specification, particularly the disclosure of the commercially
available HarborliteTM 205 perlite used in Example 1. However, that
disclosure of the commercial availability of expanded perlite in a given size
4 In any event, we note that any showing that expanded perlite is
commercially available in sizes corresponding to the largest dimension of
the perlite for a fixed bed as used in the Examples of Nelson does not
militate against the use of conventional separation and crushing steps in
obtaining such sized perlite. Moreover, as we discuss in this Decision,
Nelson also teaches forming sorbents for use in fluidized and entrained beds,
which would obviously encompass the use of much smaller sized expanded
perlite particles in forming the sorbent.
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: September 9, 2013