Appeal No. 2001-2093
Application No. 09/054,134
temperatures and pH conditions appropriate for the process
described in DE ’715 would have been within the level of the
ordinary skill in the art. Boesch, 617 F.2d at 276, 205 USPQ at
219; Aller, 220 F.2d at 456, 105 USPQ at 235; Geisler, 116 F.3d
at 1469, 43 USPQ2d at 1365.
The appellants argue that Günter aims to maintain low
viscosity homogeneous reaction conditions, while DE ’715 relates
to insoluble polymeric reactants. (Appeal brief, page 5; reply
brief filed Mar. 2, 2001, paper 27, pages 2-3.) This argument
is not persuasive. As we discussed above, one of ordinary skill
in the art would have known from the prior art that reaction
variables, such as temperature or pH conditions, are parameters
that must be taken into account in determining the appropriate
process conditions for alkylating tertiary amines, regardless of
whether the reactant is a compound or a polymer. Buske, which
is discussed in detail in the reply brief (page 3), further
supports this view. (Column 6, lines 4-25.)
The appellants urge that practicing the claimed process at
the recited temperatures and pH conditions overcomes “known
difficulties.” (Appeal brief, page 4.) We note, however, that
the appellants’ position is not supported by sufficient
evidence. While the appellants rely on the declaration under 37
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007