Appeal No. 97-3290
Application 08/465,896
inform us as to how it was determined that samples yielding an
odor ranking below about 3.0 possess an odor “which would
hardly be noticed by the general public”.4
Taking into full account the particular circumstances of
the present case, we believe it both reasonable and fair to
say that undue experimentation would be encountered on the
part of one having ordinary skill in seeking to determine
which surface-active agents having an HLB of less than about
12 were effective to reduce urine odor, as broadly claimed.
We reach this conclusion for the following reason. Claim 21
expressly requires a subjective test, a test performed by
“odor specialists”. Clearly, one of ordinary skill would not
have available to them the “odor specialists” referenced by
appellant, or knowledge of their particular qualifications, or
an appreciation of the personal spectrum of their particular
odor perceptions. Lacking this information, it follows that
an artisan would be unable to carry out the test required for
4This determination relative to odor perceptions of the general public is not
understood since the brief points out (page 4) that the test procedure does not permit
the use of “untrained” individuals.
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