Appeal No. 95-3070
Application 07/907,078
In view of the record in the patented file, we must conclude that the language added to claim 1 of
DeRosa was intended to be a Markush Group and that the grafted copolymer is reacted with only one
component selected from the group of nucleophiles (i), (ii) and (iii). We fail to find any disclosure in
DeRosa that two or more nucleophiles can be mixed with and added to the grafted copolymer. See In re
Benno, 768 F.2d 1340, 1346, 226 USPQ 683, 686 (Fed. Cir. 1985) (“The scope of a patent’s claims
determines what infringes the patent; it is no measure of what it discloses”). For these reasons, we find that
DeRosa does not anticipate the claimed subject matter set forth in claims 1, 3, 5, 6 and 9.
OBVIOUSNESS OVER MIGDAL AND KAPUSCINSKI
The examiner rejected claims 1-6 and 9 under 35 U.S.C. § 103 as being unpatentable over Migdal
in view of Kapuscinski. We will not sustain this rejection.
Migdal discloses a lubricating oil additive which provides antioxidant properties wherein an
ethylenically unsaturated carboxylic acid material such as maleic anhydride is grafted onto an ethylene-
propylene polymeric backbone to form a graft copolymer which is then amidized with an N-
arylphenylenediamine (abstract; col. 1, lines 12-15; col. 2, lines 36-67; col. 5, lines 43-50). Migdal does
suggest reacting a mixture of antioxidants with the graft copolymer. Example IV of Migdal discloses
reacting N-phenyl-p-phenylenediamine and N,N-dimethylaminopropylamine with the graft copolymer.
Kapuscinski discloses a lubricating oil additive comprising a backbone polymer such as an ethylene-
propylene copolymer onto which is grafted an isocyanoethyl meth-acylate which is amidized with an
antioxidant such as phenothiazine or N,N-dimethylamino-propylamine (abstract; claims 1 and 10; col. 6,
6
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