Appeal 2007-2906
Application 10/295,315
Secondary considerations
Bayer argues that secondary considerations, specifically unexpectedly
good results, militate against a conclusion of obviousness, citing the
testimony of Dr. Schilling.20 Dr. Schilling explains that the five foams in
Table 1 attached to his declaration were prepared under his direction. He
states that the graph attached to his declaration compares the k-factors of the
foams against a predicted k-factor value for each foam.21 The prediction
curve is simply a linear extrapolation of the comparative values, both of
which are outside the ranges of Takeyasu and claim 6, which in a closer case
might raise serious questions about the methodology employed.
All three of the foams not identified as comparative examples show k-
factors superior to the predicted values.22 Foams 2 and 3 appear to be the
same as Foams 2 and 3 of the specification, which were discussed above.
Both of these Foams use HFC-134a/HFC-245fa ranges within both
Takeyasu's preferred ranges and the ranges in claim 6.
The examiner argues that Bayer has not provided comparative data
outside the scope of Bayer's claims (but presumably inside the scope of
Takeyasu's more preferred ranges).23 Bayer replies that the examiner is
wrong.24 Even discounting the comparative examples (which are not within
the ranges of either claim 6 or Takeyasu's more preferred ranges), the
examiner is wrong. Schilling's Foam 4 uses 12.83 parts by weight HFC-
20 Br. 4-7.
21 Schilling 2.
22 Schilling 5 (graph).
23 Examiner's Answer 4.
24 Reply 2.
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Last modified: September 9, 2013