Ex Parte Krizan

Board of Patent Appeals and Interferences

May 25, 2006

09975806 (B.P.A.I. May. 25, 2006)

The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte JEFFREY F. KRIZAN
____________

Appeal No. 2006-1144
Application No. 09/975,806
_____________

ON BRIEF
_____________

Before KIMLIN, PAK, and TIMM, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-6
and 8-23. Claim 1 is illustrative:
1. A pigment composition comprising TiO2 and a TiO2
stabilizing and anti-agglomeration effective amount of barium
sulfate wherein the amount of TiO2 is in the range from about
65.0 to 95.0 percent by weight and the amount of barium sulfate
is in the range from about 5.0 to 35.0 percent by weight, all
weights being based on the weight of the total solids content of
the composition.

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Application No. 09/975,806

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The examiner relies upon the following references in the
rejections of the appealed claims:
Alessandroni 2,212,629 Aug. 27, 1940
Dietz 3,549,396 Dec. 22, 1970
Kreth et al. (Kreth) 4,885,034 Dec. 5, 1989

Appellant’s claimed invention is directed to a pigment
composition, and the method of making it, comprising TiO2 and
barium sulfate in the recited amounts. The barium sulfate
serves to stabilize and act as an anti-agglomeration agent for
the TiO2.
Appealed claims 1, 3, 4 and 10 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Kreth. The appealed
claims also stand rejected under 35 U.S.C. § 103(a) as follows:
(a) claims 8, 11, 13, 16 and 18-22 over Kreth,
(b) claims 5, 6, 13-15 and 17 over Kreth in view of Dietz,
(c) claims 11, 12 and 17 over Kreth in view of
Alessandroni, and
(d) claims 1-5, 9, 10 and 23 over Kreth in view of
Alessandroni.
We have thoroughly reviewed each of appellant’s arguments
for patentability. However, we find ourselves in complete
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Application No. 09/975,806

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agreement with the examiner’s reasoned analysis and application
of the prior art, as well as the examiner’s cogent disposition
of the arguments raised by appellant. Accordingly, we will
adopt the examiner’s reasoning as our own in sustaining the
rejections of record, and we add the following for emphasis
only.
We consider first the examiner’s § 102 rejection of claims
1, 3, 4 and 10 over Kreth. There is no dispute that Kreth, like
appellant, describes a pigment composition comprising TiO2 and
barium sulfate, with the amount of barium sulfate preferably
being in the range of 5 to 15% by weight. Manifestly, the
amount of barium sulfate described by Kreth falls directly
within the broader range claimed by appellant. Also, since we
find that Kreth fairly describes a pigment composition
comprising only TiO2 and barium sulfate, it follows that the
reference composition preferably has an amount of TiO2 in the
range of 95-85% by weight, a range that also falls directly
within the claimed range. Consequently, we agree with the
examiner that Kreth describes within the meaning of § 102 a
pigment composition comprising TiO2 and barium sulfate wherein
the amount of barium sulfate is a stabilizing and anti-
agglomeration effective amount, as presently claimed.
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Application No. 09/975,806

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The sole argument advanced by appellant is that Kreth “is
unlike the present invention claimed which requires only the
presence of titanium dioxide and barium sulfate in an amount
effective to stabilize and avoid agglomeration of the TiO2” (page
7 of brief, second paragraph). However, we agree with the
examiner that there are at least two reasons why this argument
is not persuasive. First, it is fundamental that the
“comprising” language does not preclude the presence of other
components in the claimed pigment composition, including the
calcium sulfate disclosed by Kreth as a possible component.
Secondly, Kreth’s disclosure of a pigment composition comprising
a mixture of TiO2 and barium sulfate and/or calcium sulfate, or
mixtures thereof, properly qualifies as a description of a
pigment mixture of TiO2 and barium sulfate for purposes of § 102.
See In re Schaumann, 572 F.2d 312, 197 USPQ 5 (CCPA 1978).
Certainly, the selection from three possible choices of
components for the pigment composition is a narrow one that is
tantamount to a description of each of the three possibilities.
Furthermore, it is significant that Kreth exemplifies a mixture
of TiO2 and barium sulfate.
Appellant does not present separate substantive arguments
against the examiner’s separate § 103 rejections but, rather,
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simply points out that the “secondary references” do not cure
the asserted deficiencies of Kreth as discussed in the traversal
of the § 102 rejection. We also note that appellant bases no
argument upon objective evidence of nonobviousness, such as
unexpected results, which would serve to rebut the inference of
obviousness established by the applied prior art.
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner’s decision rejecting the
appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv)(effective Sept. 13, 2004).
AFFIRMED

Edward C. Kimlin )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Chung K. Pak ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Catherine Timm )
Administrative Patent Judge )

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