Appeal 20072907
Application 10644791
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.36 From Henkel's Background of the Invention37 and
the four cited reference, we have an unusually clear view of what a person
having ordinary skill in the art knew and could do. Those skilled in the fire-
retardant epoxy resin art knew how to make and use epoxy resins with a
broad range of fire-retardant additives, including melamine cyanurate and
chromium-family metal oxides. They understood the need to eliminate
bromine and antimony for safety reasons. They understood that alternative
additives presented various advantages and disadvantages. They understood
and made various combinations of known additives to maximize the
advantages while minimizing the disadvantages. Combinations included
using molybdenum and tungsten oxides with melamine/isocyanuric acid
compositions. One skilled in the art would have expected chromium-family
metal oxides to work with melamine cyanurate as substitute fire retardants in
place of bromine, antimony, and phosphorous compositions.
SECONDARY CONSIDERATIONS: UNEXPECTED RESULTS
Henkel relies on the declaration of Dr. Anthony A. Gallo, one of the
inventors named for the application on appeal, to provide evidence of
36 Ex parte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded
panel). Dr. Gallo, a named inventor for the application on appeal, filed a
declaration, but it does not directly address the question of the level of skill
in the art.
37 Spec. ¶¶0003-0006.
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