Appeal No. 2002-1757
Application No. 09/994,894
cerium sulfate and ammonium cerium nitrate oxidizers would
exhibit Kaufman’s desired polishing selectivity towards titanium.
Indeed, the to-be-polished surfaces disclosed by Farkas (e.g.,
see lines 7-9 and 36-48 in column 3) do not even contain
titanium.
Thus, while the oxidizers of Farkas may contain certain
advantages over hydrogen peroxide, an artisan with ordinary skill
would have had no reasonable expectation that Kaufman’s hydrogen
peroxide could be successfully replaced with Farkas’ ammonium
cerium sulfate and/or ammonium cerium nitrate vis-à-vis achieving
Kaufman’s desired polishing selectivity towards titanium. See In
re O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681 (Fed.
Cir. 1988)(for obviousness under section 103, a reasonable
expectation of success is required). Under these circumstances,
it is apparent that the examiner has erroneously concluded “it is
[sic, would have been] obvious to replace [Kaufman’s] hydrogen
peroxide with Farkas’s [sic] oxidizers, such as ammonium cerium
nitrate and ammonium cerium sulfate” (see the last page of the
answer).
It follows that we cannot sustain the examiner’s section 103
rejection of all appealed claims as being unpatentable over
Kaufman and Farkas.
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