Appeal No. 2002-0866
Application No. 09/262,471
To arrive at the claimed mixture, both the examiner and the
appellants recognize that ammonium sulfide must be selected from
the large number of sulfur containing compounds listed in Delft.
See, e.g., the Answer, page 7 and the Brief, pages 5 and 6.
While some picking and choosing may be appropriate in making an
obviousness rejection under 35 U.S.C. § 103, it is entirely
improper in making a rejection under 35 U.S.C. § 102(b) for
anticipation. See In re Arkley, 455 F.2d 586, 587-88, 172 USPQ
524, 526 (CCPA 1972). Delft simply does not describe the claimed
invention with a sufficient degree of specificity to constitute
“anticipation” within the purview of 35 U.S.C. § 102(b). See In
re Schaumann, 572 F.2d 312, 315, 197 USPQ 5, 8 (CCPA 1978).
Accordingly, we reverse the examiner’s rejection of claims 1, 2,
6, 8 through 13, 15 through 17 and 20 under 35 U.S.C. § 102(b).
We turn next to the examiner’s rejection of claims 14 and 18
under 35 U.S.C. § 103 as unpatentable over the combined
disclosures of Delft and Heuvel. The examiner’s Section 103
rejection is premised upon obviousness of including 3-methyl
thiophene taught in Heuvel in a mixture corresponding to that
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