Appeal 2007-1639
Application 09/974,092
col. 18, l. 46). Thus, Mendicino’s smallest particle size (100 nanometers) is
approximately 67% larger than the largest particle size (60 nanometers)
permitted by the present claims. We agree with Appellants that this fact,
coupled with Mendicino’s preference for particle sizes ranging up to 20,000
or 30,000 microns, fails to suggest a particle size below 100 nanometers,
much less the specifically recited range of 30-60 nanometers required by the
present claims (Appeal Br. 7). See In re Sebeck, 465 F.2d 904, 907 (CCPA
1972) (obviousness rejection based on optimization reversed where claimed
values were outside the prior art range).
On this record, the rejection of claims 1-5 and 27 under 35 U.S.C.
§ 103(a) as unpatentable over Mendicino is not sustainable. The rejection is
reversed.
REVERSED
lbg
MOMENTIVE PERFORMANCE MATERIALS INC.
IP LEGAL
ONE PLASTICS AVENUE
BLDG. 51
PITTSFIELD MA 01201-3697
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