Appeal 2007-4227
Application 10/409,417
argument against the Examiner's conclusion. Nor has Kutilek presented any
evidence that this knowledge was beyond the comprehension of those of
ordinary skill in the art in 2003.
Kutilek's argument that the inventors have discovered a new use for
known compositions (FF 39; Br. at 3) is not persuasive. As the Examiner
pointed out in rebuttal (Answer at 5), the sole physical step, adding the
dopant to the titania, has been anticipated. The effects of that step are, on
the present record, prima facie fully met. Claim 1 does not limit the amount
of dopant. Kutilek has not argued, for example, that the amounts of dopant
suggested by Chopin would not suffice to shift the transition temperature.
Given the substantial overlap of the disclosed amount of dopant metal
(417 Application, 0-2% (Al, Mb) or 0-8% (V) (FF 10–11); Chopin, 0.01 to
10% (FF 23)), such arguments would seem to require significant evidentiary
support. In any event, the time to make such arguments has passed, and
those arguments have been waived.
Similarly, Kutilek's arguments that Chopin does not teach the heating
temperature, or specific dopants, or specific crystal structures (Br. at 5) do
not by themselves in the absence of supporting evidence explain or justify
Kutilek's conclusion that one of ordinary skill in the art would not have been
led to the present invention from the teachings of Chopin. Such an
abbreviated arguments amount to mere pleading and do not suffice to
counter the Examiner's evidence with evidence favoring Kutilek.
We conclude that Kutilek has not carried its burden of demonstrating
reversible error by the Examiner.
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