Appeal 2007-1903
Application 10/047,024
compound and a metal alkoxide under basic conditions. We do not find
these arguments persuasive since they are not commensurate in scope with
the language of claim 10, i.e., claim 10 does not require the formation of
silica particles in situ and does not require “basic conditions”.
The rejection of claims 1, 2, and 4-11 under 35 U.S.C § 102(b) as
anticipated by Nogami is affirmed. Having concluded that claim 10 is
anticipated by Nogami, we also affirm the rejection of claims 1-11 under
35 U.S.C § 103(a) as unpatentable over JSR, taken with Nogami. Having
concluded that claims 4 and 5 are anticipated by Nogami, we also affirm the
rejection of claims 4 and 5 under 35 U.S.C § 103(a) as unpatentable over
Nogami. See Connell v. Sears Roebuck & Co., 722 F.2d 1542, 1548, 220
USPQ 193, 198 (Fed. Cir. 1983) (quoting In re Fracalossi, 681 F.2d 792,
794, 215 USPQ 569, 571 (CCPA 1982)) (“Anticipation is the epitome of
obviousness.”). See also, In re McDaniel, 293 F.3d 1379, 1383 63 USPQ2d
1462, 1464-65 (Fed. Cir. 2002) (finding that the Board did not err in
selecting claim 53 as representative of a separate § 102(b) rejection of
claims 61-63, because claims 61-63 were rejected over some of the same
references and under the same statutory provision as claim 53, and, therefore
shared common grounds of rejection with Claim 53).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(vi)(effective Sept.
13, 2004).
AFFIRMED
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