Appeal No. 95-2734
Application 07/952,060
the ingredients in several different ways including the deposition and firing of the
washcoat followed by the deposition and firing of the tungsten and platinum group
metals (e.g., see lines 4 through 16, especially lines 11 through 16, in column 2). This
last mentioned preparation technique would result in a separate refractory oxide layer
having the here claimed juxtaposed relation to tungsten oxide.
In light of the foregoing, it is our opinion that a catalyst corresponding to that of
appealed claim 1 would have been obtained by picking and choosing from Wyatt’s
disclosure of many suitable refractory oxide compounds, a barium oxide or a lanthanum
oxide specifically as a washcoat material and by picking and choosing from patentee’s
several catalyst-preparation techniques, the specific technique discussed above.
Because the catalyst under consideration is the consequence of picking and choosing
rather than clear and unequivocal direction from the Wyatt reference, we cannot
sustain the examiner’s § 102 rejection of appealed claim 1 or of appealed claims 3
through 5 and 12 through 14 which include all of the claim 1 limitations. In re Arkley,
455 F.2d 586, 587, 172 USPQ 524, 526 (CCPA 1972). Nevertheless, we are confident
that it would have been obvious for one with ordinary skill in the art to have made these
selections notwithstanding the large number of selection combinations embraced by
patentee’s disclosure. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 808, 10
USPQ2d 1843, 1846 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
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