Appeal 2007-0501
Application 10/747,956
to obtain the claimed product having the specified grain spectrums to
characterize the claimed products. Appellants have not established by
evidence or effective argument that the claimed products patentably
distinguish over the products obtained with a pulverizing step taught in the
applied prior art. See, e.g., Thorpe, 777 F.2d at 697, 227 USPQ at 966 (Fed.
Cir. 1985); In re Best, 562 F.2d 1252, 1254-56, 195 USPQ 430, 433-34
(CCPA 1977).
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Seseke-Koyro ‘641, Lauzon, and Popoola and of
Seseke-Koyro ‘641, Lauzon, and Shimajiri with Appellants’ countervailing
evidence of and argument for nonobviousness, and conclude that the claimed
invention encompassed by appealed claims 8 through 12 would have been
obvious as a matter of law under 35 U.S.C. § 103(a).
The Primary Examiner’s decision is affirmed.
OTHER ISSUES
We suggest the Examiner consider the following issues upon any
further prosecution of the appealed claims subsequent to the disposition of
this appeal.
We determine each of independent claims 8, 11, and 12 characterize
the products claimed therein by specifying the preparation thereof by
combining at least three of the four recited ingredients in the specified
manner.
We find Example 1 of Seseke-Koyro ‘641 as shown by Seseke-Koyro
‘221, would have disclosed reacting zinc oxide with aqueous hydrogen
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