Appeal No. 95-1622
Application 07/890,593
Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972); In re Borkowski, 505 F.2d 713,
718, 184 USPQ 29, 33 (CCPA 1974); In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358
(CCPA 1972); In re D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (1971). There is no
doubt that the reaction between the ogranometallic complex and the non-monomeric mononucleophilic
compound in Wright solutions 1-3 in declaration Example A or the ogranometallic copolymer and the
non-monomeric mononucleophilic compound in Wright solution 1 in declaration Example B forms the
reaction product characterized by declarant McCormick as the “CpMn(CO)2/N species” because the
declaration Examples are no more than bare reproductions of the basic chemistry depicted in Wright
(cols. 3, lines 52-62, and col. 4, lines 1-8, 11-25, and 28-50) but with no inter- or intra-crosslinking of
a copolymer containing an energy sensitive organometallic group through a nucleophilic group present in
the same or different polymer or in a polynucleophilic compound which is the point of Wright
Embodiments I-III. There is objective evidence in the qualitative results reported for Wright solutions
1-3 in declaration Example A that chemical bonds were formed between the non-monomeric
organometallic complex and the basic reactive site containing substrate, and thus not prevented, by the
non-monomeric mononucleophilic compound at least at certain levels of irradiation consistent with the
teachings of Wright. There is no objective evidence in the qualitative results reported for Wright
solution 1 in declaration Example B that chemical bonds were not formed between the organometallic
copolymer and the substrates, and thus prevented by the non-monomeric mononucleophilic compound,
at the single level of irradiation reported, which level of irradiation is indeed below that in intensity and,
in certain instances, the period taught in Wright. The conclusions drawn by declarant McCormick from
the subjective descriptions of adhesion set forth in the Wright Examples add little, if any, substance to
these showings.
We find that appellants and declarant McCormick have failed to establish by evidence or
scientific explanation that such objective and subjective evidence can be extrapolated to provide even
an indication of any actual difference between the articles of appealed claim 2, as we have construed
this claim above, and the articles taught by the Wright Examples and Embodiments addressed in the
McCormick declaration that would be probative with respect to whether the claimed and Wright
articles are necessarily or inherently identical or substantially identical or whether the modifications of the
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