Appeal 2007-4227
Application 10/409,417
The technical basis of the Examiner's conclusion is readily apparent:
because the metals differ in their atomic numbers, the number of electrons,
the configuration of electrons in the ionic core, etc., each metal would have
an effective radius and an effective charge that would be expected to differ
from the corresponding values for titanium in titanium dioxide. Thus, the
presence of a dopant metal would have been expected to change the energy
and perturb the structure of the TiO2 lattice. These changes would have
been expected to manifest themselves in the properties of the lattice, in
particular, in the temperature at which an orderly, crystalline lattice would
form from a relatively disordered, amorphous state.4 In any event, we
observe that claim 1 requires only a "shift," not a decrease, of the transition
temperature5.
We conclude that the Examiner's rejection based on inherency is well-
founded. In the alternative, the Examiner has a sound basis for concluding
that the process of the prior art is the same or substantially the same as the
process claimed by the Applicants. In any event, Kutilek has not made any
4 The effect of dopants on transformations between different crystalline
forms of TiO2 is well known, as shown by Terry A. Egerton, Titanium
Compounds, Inorganic, 24 Kirk Othmer Encyclopedia of Chemical
Technology, 225, 235 (4th ed. 1997): “It is accepted that, at normal
pressures, rutile is the thermodynamically stable form of titanium dioxide at
all temperatures. Calorimetric studies have demonstrated that rutile is more
stable than anatase . . . The rate of transformation is critically dependent on
the detailed environment and may be either promoted or retarded by the
presence of other substances. For example, phosphorus inhibits the
transformation of anatase to rutile.” (Emphasis added; citations omitted.)
5 We note that Kutilek's specification appears to mention expressly only
instances in which the transition temperature is decreased: see, e.g., the
417 Application at 9, ¶ 22, at 10, ¶ 25, at 14, ¶ 33.
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