Appeal 2007-0121
Application 10/324,594
the art to optimize or determine the workable particle sizes for the perlite
particles used in forming the sorbent of Nelson and, in so doing, arrive at the
claimed perlite particle sizes?
We answer that question in the affirmative for reasons stated below
and in the Answer. Consequently, we shall affirm the Examiner’s
obviousness rejection of claims 18-26 over Nelson in view of Khare.
In particular, we again note that Nelson discloses that the sorbent can
be made for use in a fixed, fluidized (fluid motion), or entrained bed
desulfurizer. As such and for reasons discussed in our consideration of the
Examiner’s rejection of claim 1, one of ordinary skill in the art would have
recognized in Nelson, a teaching as to the result effectiveness of particle
sizes of the sorbent and, in turn, the perlite particles which make up a
significant part of the sorbent. Furthermore, we are satisfied that the totality
of the evidence before us reasonably suggests that one of ordinary skill in
the art would arrive at the use of a workable size range for the perlite
particles, including particles of a size as required by claim 18 for making the
sorbent of Nelson appropriate for subsequent fluidization or entrainment of
the sorbent. See In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219
(CCPA 1980); In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955). After all, it is well settled that skill and not the converse is expected
of an ordinarily skilled artisan. See In re Sovish, 769 F.2d 738, 742-743, 226
USPQ 771, 774 (Fed. Cir. 1985).
Consequently, we shall affirm the Examiner’s obviousness rejection
of claims 18-26 and 38 over Nelson and Khare.
Claim 39
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