Appeal 2007-1855
Application 10/815,650
an activated carbon powder having average particle diameter of 4.5 µm
provides “excellent” line reproducibility and no occurrence of fogging after
50,000 copies (id. 19). The Examiner contends “even if the evaluations used
in Machida were not identical to those used in the instant specification, the
preponderance of evidence shows that the toner in [Declaration] comparative
example 1 does not provide the images provided by the Machida toner (1)”
(id.). The Examiner contends Machida’s toners containing activated carbon
powder having average particle sizes of 7.5 µm and 10 µm “provided images
with slight occurrence of fogging after 40,000 copies and occurrence of
fogging after 10,000 copies, respectively,” and the reference teaches that
“fogging and filming” occurs with toners having particles greater than 5 µm
(id. 19-20). The Examiners contends Appellants have not established that
Machida’s particle size of “approximately 5 µm or less” includes the particle
size 5.59 µm (id. 20-21).
The Examiner contends Machida’s silence with respect to CV does
not relieve Appellants’ burden because Appellants disclose the claimed
physical characteristics “are responsible for the toner’s blackness, covering
strength, and chargeability – and ultimately, its ability to provide high
quality images,” and Machida similarly discloses “stable chargeability, small
sized particles, and superior image quality” (Answer 21). The Examiner
contends Appellants’ disclosure of the properties of toners is appropriate use
of available evidence to determine whether it is reasonable to shift the
burden to Appellants to distinguish over Machida (id. 21-23). The Examiner
contends one of ordinary skill in the art would compare results with respect
to “thin-line reproducibility” and “fogging” in the Specification with those
in Machida even though not determined by the same method because
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