Appeal 2007-2906
Application 10/295,315
HFC-245fa".14 Again, Bayer does not identify the source of either
limitation. Neither is present in claim 6.
Bayer argues that Takeyasu does not teach foam cell size.15 Again,
Bayer does not identify the source of this limitation, which is not present in
claim 6.
Ordinary level of skill in the art
We look to the evidence of record—the applicant's disclosure, the
cited references, and any declaration testimony—in resolving the ordinary
level of skill in the art.16 From the Takeyasu patent, we find that persons
having ordinary skill in the art knew to make and use foaming agents of
HFC-134a and HFC-245fa, either exclusively or in combination with other
foaming agents, in the ranges of weight-percentages stated in claim 6.17
From Bayer's specification, which discusses the Takeyasu patent, we find
that such persons would know that Takeyasu's foaming agent composition
would have lower k-factors (better insulation value) than those made with
HFC-134a alone.18 Bayer has submitted the declaration of Dr. Steven L.
Schilling, who is named as an inventor for the application on appeal, but his
testimony does not address the level of skill directly.19
14 Br. 4.
15 Br. 5.
16 Ex parte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded
panel).
17 Takeyasu 2:24-50. We must presume the Takeyasu patent to have been
enabled. Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1354,
65 USPQ2d 1385, 1416 (Fed. Cir. 2003).
18 Spec. 2:5-26.
19 Schilling declaration (Schilling), Evidence Appendix to the Appeal Brief.
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