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
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