Ex Parte Schlegel et al - Page 12

                Appeal 2007-4101                                                                               
                Application 09/962,972                                                                         
                Example 2), have the same properties as those shown in Specification                           
                Example 2.                                                                                     
                      The Appellants have also referred to page 3, paragraphs 0036 and                         
                0037 of the unknown published application as describing the formation of                       
                paste having highly organized crystalline needle-like structure from an                        
                aqueous suspension (Br. 13).  However, the Appellants have not supplied                        
                any copy of this evidence in the Evidence Appendix section of the Brief as                     
                required by 37 C.F.R. § 41.37(c)(viii) (2004), but have indicated “none” at                    
                the Evidence Appendix section of the Brief for the evidence relied upon in                     
                the Brief.  Accordingly, we need not consider the unknown published                            
                application not provided by the Appellants.  In any event, the claims on                       
                appeal do not preclude compacting or crushing the above structure in the                       
                manner taught by Klabunde.                                                                     
                      Therefore, based on the Factual Findings set forth in the Answer and                     
                above, we determine that the preponderance of evidence weighs most                             
                heavily in favor of obviousness of the subject matter defined by claims 1                      
                through 4, 8, 9, 13, and 16 within the meaning of 35 U.S.C. § 103.                             
                      As evidence of obviousness of the subject matter defined by claims 1                     
                through 9 and 12 through 14 under 35 U.S.C. § 103(a), the Examiner has                         
                also relied on the combined disclosure of Klabunde and Wilkins.  According                     
                to the Examiner (Answer 4):                                                                    

                      Klabunde discloses the claimed invention with the exception of                           
                      the recited cartridge housing.  Wilkins discloses a fluid                                
                      purifying device comprising a cartridge housing of the type                              
                      recited. This reference further discloses a hydrophobic                                  
                      membrane of the type recited (see col. 8, lines 65-66), and a gas                        
                      vent (see col. 8, lines 18-22).  It would have been obvious to                           

                                                      12                                                       

Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  Next

Last modified: September 9, 2013