Appeal 2007-1931
Application 10/247,330
predicated upon change in condition of a prior art composition, such as a
change in concentration or the like, such as surface area, the burden is on the
applicant to establish with objective evidence that the change is critical, i.e.,
it leads to a new, unexpected result. In re Woodruff, 919 F.2d 1575, 1578
(Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456 (CCPA 1955). In the
present case, Appellants have proffered no objective evidence that colloidal
silica having values falling within the 3 claimed ranges produce unexpected
results, vis-à-vis precipitated silica exemplified and fairly described by
Kirino.
Concerning the Examiner's § 103 rejection of claims 1-7 and 17-22
over Kirino in view of Materne, Blume or Uhrlandt, Appellants have not
addressed, let alone refuted, the Examiner's rationale that it would have been
obvious for one of ordinary skill in the art to use the well known silane
coupling agents of Materne, Blume or Uhrlandt in the composition of Kirino
which includes silane coupling agents.
As a final point, we note that Appellants have not contested the
Examiner's provisional double patenting rejection.
In conclusion, based on the foregoing and the reasons set forth by the
Examiner, the Examiner's decision rejecting the appealed claims is affirmed.
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