Appeal No. 2001-0600
Application No. 08/584,776
Rambach teach that the $ modifications of dyes having the
specific formulas disclosed therein are more stable than their
known " modifications. However, none of these three references
teach that, in general, the $ modification of a dye is more
stable than the " modification. In fact, Rambach teaches that
the $ modification of the dyes disclosed therein is
“surprisingly” more stable. Abstract.
Eugster discloses an 0-modified azo dye which is stable to
dyeing. Abstract. As pointed out by appellant, Hashimoto does
not indicate whether the disclosed dye is in " or $ form, a point
which the examiner fails to address. See Appeal brief, page 15,
first paragraph. Thus, contrary to the examiner’s contention,
neither Eugster nor Hashimoto support the general proposition
that the $ form of an azo dye is more stable.
The examiner’s rejection also assumes that it is routine in
the art to convert the " modification of an azo dye into the $
modification, and that the manner of converting is known. See
Examiner’s answer, page 6. However, the examiner fails to
identify any support in the references for this conclusion. See
In re Thrift, 298 F.3d 1357, 1364, 63 USPQ2d 2002-2006 (Fed. Cir.
2002)(quoting Lee, 277 F.3d at 1344-45, 61 USPQ2d at 1435)
(reliance on “common knowledge and common sense” do not fulfill
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