Appeal No. 1998-2543
Application 08/606,939
Fukazawa discloses compounds, suitable for use in the cosmetic industry, having
the following formula:
where R1 and R2 indicate hydrogen atoms or alkyl groups with 1 to 36 carbon atoms, and
R3 indicates an alkyl group with 1 to 36 carbon atoms. See, for example, Fukazawa at
page 2, claim 1; paragraph bridging pages 4 and 5; and page 5, first full paragraph. We
think it clear, based on a review of this reference in its entirety, that Fukazawa prefers
compounds where variable R1 or R2 is hydrogen. Again, see Fukazawa, page 5, first full
paragraph; and see the compounds listed in Tables 1, 2, and 3 (pages 10, 11, and 12,
respectively).
It cannot be gainsaid that Fukazawa specifically discloses one trialkyl phosphite,
namely, tristearyl phosphite which is listed at the bottom of Tables 1 and 2. That
compound, however, does not have an “asymmetric” configuration where, R1, R2, and R3
are long, long, and short, respectively (applicants’ nomenclature), but rather has a
symmetric configuration where each R group is stearyl. Tristearyl phosphite or a
composition containing tristearyl phosphite does not anticipate any of the appealed claims
within the meaning of 35 U.S.C. § 102(b).
As best we can judge, the examiner’s position is that Fukazawa generically
of the document, this refers to pagination in the English translation.
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