Appeal No. 1999-2158
Application No. 08/971,460
that “Fischer teaches on page 266, to increase viscosity to
increase mechanical dispersion in colloidal fluids.” Answer,
page 4. We agree with appellants that Fischer alludes to
systems with high viscosity grinding media and not to the
claimed process where the initial mixture or composition
becomes highly viscous (Brief, page 5). In other words,
Fischer is directed to increased viscosity of the grinding
media but does not directly relate increased dispersion to
increased viscosity of the composition to be sheared (the
initial mixture). “Where the legal conclusion [of
obviousness] is not supported by facts it cannot stand.” In
re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Even assuming arguendo that the examiner’s findings have
support in the prior art, the examiner has failed to point out
why the claimed pH range of 6 to 9 would have been obvious in
view of the reference evidence. The examiner merely states
that “controlling the pH” would have been obvious but gives no
explanation as to why the claimed limitation of a pH range of
6 to 9 for the initial mixture would have been obvious or
suggested by the applied prior art (Answer, page 4; see the
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