Appeal 2007-1938
Application 10/050,437
can uncertainties of claim scope be removed, as much as possible, during the
administrative process.” Id. Appellant has not amended his claims to state
clearly and unambiguously that the recited method steps produce a carbon
aerogel composite having an average pore size of less than 100 nm. Nor has
Appellant pointed to any evidence of record establishing that one of ordinary
skill in the art would have understood a monolithic glassy carbon composite
prepared by any method within the scope recited in the claims would
necessarily have an average pore size of less than 100 nm.
Here, Droege describes the same method steps as recited in claim 1
and describes using the same materials and method steps as set forth in
Appellant's specification (FF 28). Droege describes aerogels having pore
sizes not larger than 100 nm (FF 23) and expressly exemplifies a carbon
aerogel fiber composite having a pore size distribution of 20 nm and a
density of 419 kg/m3 (FF 24). Furthermore, the density of the carbon
aerogel fiber composite of Droege Example 3 appears "comparable" to the
~ 150 kg/m3 density of the silicon aerogels disclosed by Lu (FF 38) and the
115-125 kg/m3 densities said to be attributed to the carbon aerogel foam
composites shown in Table 1 of Appellant's specification (FF 13).
Moreover, Appellant has not shown that the properties of a Droege carbon
aerogel composite are not comparable to the properties of a carbon aerogel
composite produced by the claimed method. Compare In re Thorpe, 777
F.2d 695, 697, 227 USPQ 964, 965-66 (Fed. Cir. 1985) (product-by-process
patent properly denied where end result was indistinguishable from prior
art). The Hrubesh Declaration does not provide measurements of the
average pore size of a carbon aerogel composite produced by the claimed
method or explained how the structure and properties of silica aerogels
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