Ex Parte METCALF et al - Page 12




             Appeal No. 94-2842                                                                                   
             Application 07/882,351                                                                               


             at appellants’ invention recited in claim 20, it would be                                            
             necessary to both substitute an adjacent homolog for one of the                                      
             Lampman I compounds and to use this homolog to attract a                                             
             different species of corn rootworm.  While it would have been                                        
             obvious to one of ordinary skill in the art, as discussed above,                                     
             to use to attract southern corn rootworm an adjacent homolog of a                                    
             compound known to attract that rootworm, or to use to attract                                        
             northern corn rootworm a compound known to attract southern corn                                     
             rootworm, we do not consider the evidence to be strong enough to                                     
             support a finding that one of ordinary skill in the art would                                        
             have had a reasonable expectation of success when making these                                       
             substitutions in combination.                                                                        
                                                  Conclusion                                                      
                    For the above reasons, we conclude, based on the evidence of                                  
             record on balance, that the invention recited in appellants’                                         
             claims 8-18 and 23-31, but not that recited in appellants’ claims                                    
             20-22, would have been obvious to one of ordinary skill in the                                       
             art within the meaning of 35 U.S.C.  103.                                                           
                                                   DECISION                                                       
                    The rejection of claims 8-19 and 23-31 under 35 U.S.C.  103                                  
             as being unpatentable over Merck, Andersen, Lampman I, Lampman                                       
             II, Ishikawa, Rhodes, Metcalf ‘922, Hennart, Metcalf and Lance,                                      
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