Appeal 2007-4099
Application 09/962,935
Consistent with Brown, the Examiner has demonstrated that the pellet taught
by Klabunde “reasonably appears to be either identical with or only slightly
different than” the claimed pellet. As indicated supra, there is no dispute
that Klabunde describes a pellet useful for a fluid medium (inclusive of gas
or liquid), having the claimed ingredient, particle size and BET surface area.
Klabunde also teaches preparing pellets in methods similar to that claimed
(cols. 4-11, Examples 1-3). Klabunde’s Examples 1 and 2 show forming
powder from an aerogel and pressing the powder in a small hydraulic press
at 1000 and 2000 psi to make spherical pellets having a diameter of 12 mm
(col. 4-9). The pellets formed are then activated at 500oC (Klabunde, cols. 6
and 7). Klabunde’s Example 3 also shows forming powder from “hydrating
99.99 % ultrapure metal oxide with excess distilled deionized water, heating
it under a nitrogen flow forming metal hydroxide, removing the excess of
water in the microwave” (col. 9, ll. 58-65). The powder prepared in this
manner, according to Klabunde, is compacted and activated (cols. 10 and 11,
Table 5).
Thus, it is incumbent upon the Appellant to demonstrate that the
claimed pellet prepared from an aqueous suspension is not either identical or
substantially identical to the pellet taught by Klabunde. Rather than
demonstrating the difference between the claimed and prior art pellets, the
Appellant only argues that Klabunde does not teach preparing pellets from
an aqueous suspension (Br. 10). In so doing, the Appellant has failed to
recognize that the claims on appeal are directed to a unit containing an
adsorbent/catalyst pellet, not a process for making the same. In re Thorpe,
777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985) (“ The patentability
of a product does not depend on its method of production….If the product in
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