Appeal No. 94-2842
Application 07/882,351
ordinary skill in the art would have had a reasonable expectation
that a compound which attracts one of the species also would
attract the other to some extent.
Evidence that one of ordinary skill in the art would have
had such an expectation is the data of Lampman I (page 969, Table
5), wherein the attraction of western, southern and northern
rootworms to ten compounds is compared. The results show that in
ten out of the thirteen tests in which one of the compounds
attracted either southern corn rootworm or northern corn
rootworm, the compound also attracted the other corn rootworm to
some extent.
Thus, given that phenylethanol is effective for attracting
southern corn rootworm, one of ordinary skill in the art would
have had a reasonable expectation of success in using
phenylethanol to attract northern corn rootworm. Because all
that is required for a prima facie case of obviousness is a
reasonable expectation of success rather than absolute certainty,
see In re O’Farrell, 853 F.2d 894, 902, 7 USPQ2d 1673, 1680 (Fed.
Cir. 1988), it would have been prima facie obvious to one of
ordinary skill in the art to use phenylethanol to attract
northern corn rootworm.
The evidence presented in the Lampman declaration discussed
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