Appeal 2007-0136
Application 90/006,222
composition is approximately 40-50%, preferably 45%, by weight filler.21
Newman provides examples in which the total weight percentage of the filler
that is carbide ranges from 85-99.5%.22 External carbides form 19-23%,
preferably 21%, by weight of the total.23 The examiner calculates:24
Total carbide = (45%filler · 95.06%carbide) + 21%coating = 63.77%
The same calculation applied to the ranges produces a range of 53- 72.75%
by weight for total carbide in Newman's composition.25
Alternatively, in Table 5, the filler makes up exactly 60% by weight
of the combined weight of the filler and tube:
45%filler
45%filler + 30%tube = 60% filler+tube
Differences
For claim 1, BHI argues that Newman fails to teach "at least 60% by
weight of the composition [is] sintered and cast carbide pellets".26 This
difference misstates the actual limitation, which is really about granules
sandwiched between two open-ended transitional phrases. Claim 1 uses
comprising language, which means that the 60% limitation refers to 60%
21 Newman 7:19-30.
22 Newman 5:6-42.
23 Although our construction of claim 19 permits external carbides, the 60%
limitation appears in claim 1, which does not have a tube-filling limitation.
24 Ans. 4-5. The 95.06%carbide is the sum of the preferred carbide percentages
in Newman's Table 2: 70.57%macrocrystalline + 24.49%crushed/cemented).
25 Although in the reply (at 4), BHI appears to concede that Newman teaches
the 60% by weight limitation, the concession is very narrow since it does not
concede that the 60% relates to relevant carbides.
26 Br. 5.
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