Appeal No. 95-0777
Application 07/756,411
examiner’s, answer, page 6). The examiner concludes that the
production of the claimed Gamma compound, though unappreciated,
is “by no means accidental”, and the complex of compounds was
clearly intended to be made (answer, page 6).
Contrary to the examiner’s interpretation, any production of
Gamma by Carter would be considered accidental and unappreciated.
Carter never recognized that 4-hydroxy derivatives of alpha
existed or how to isolate and purify them. As conceded by the
examiner, any production of Gamma by Carter was unappreciated
(answer, page 6). This result may also be considered
“accidental”, i.e., not intended and not appreciated. See Eibel
Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.
Ct. 322 (1923). A prior achievement of a product may be
considered accidental if it was a consistent though unintended or
incidental consequence of what was deliberately intended . It is5
clear that any production of Gamma by Carter was unintended or
incidental to the deliberate production of alpha and beta.
5Chisum on Patents, Vol. 1, § 3.03[2], p. 3-37 (Matthew
Bender, 1997).
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