Appeal No. 94-4487
Application No. 08/006,021
Appellant cites EXAMPLE 3 of the present specification to
demonstrate that, contrary to the teachings of the prior art,
salts of magnesium, nickel, zinc, manganese, sodium and calcium
do not stabilize dilute solutions of CMI, whereas the ferric salt
does. However, the relevant issue is whether, based on the
teachings of the prior art, the claimed invention utilizing
ferric salt as a stabilizer would have been unobvious to one of
ordinary skill in the art. Manifestly, the applied prior art
teaches the use of the claimed ferric salt as a stabilizer in a
dilute solution, and EXAMPLE 3 does not evidence unexpected
results by demonstrating that the claimed ferric salt operates as
taught by the prior art. While appellant's specification data
may be unexpected to the extent that it demonstrates certain
salts are ineffective, this is not relevant to the claimed
subject matter.
In conclusion, based on the foregoing, the examiner's
rejection under 35 U.S.C. § 112, first paragraph, is reversed.
The examiner's rejection under 35 U.S.C. § 103 is affirmed. The
examiner's decision is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
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