Appeal 2007-2671
Application 10/461,955
teach or suggest a total solids level of the curable fluid at 75% or higher, as
presently claimed. Appellants emphasize that Rowley discloses a "solids
content ranging broadly from about 40% to 60% and advantageously from
about 45% to 55%" (col. 6, ll. 1-3).
Although there is not an explicit teaching in the prior art cited by the
Examiner that increasing the solids content of a composition results in any
increase in viscosity of the composition, we agree with the Examiner that
such a relationship between solids content and viscosity was well known in
the art. Manifestly, the higher the solids content of a composition, the less
its ability to flow and, ergo, the higher its viscosity.
Moreover, it is well settled that where patentability is predicated upon
a change in a condition of a prior art composition, such as a change in
concentration or the like, the burden is on the applicant to establish with
objective evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990);
In re Aller, 220 F.2d 454, 456 (CCPA 1955). In the present case, Appellants
have proffered no objective evidence that increasing the solids content of a
curable fluid comprising polymeric nanoparticles of the type disclosed by
Rowley produces an unexpected result. Indeed, Appellants' Specification
hardly attaches any criticality to the solids content of the composition. For
instance, the Specification states that the solids content is preferably equal to
or greater than 50%, more preferably equal to or greater than 75%, even
more preferably equal to or greater than 95%, and most preferably equal to
or greater than 99% (see para. bridging pages 24-25), and, furthermore, that
the composition can also have a low solids content of 10% depending upon
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