Appeal No. 94-4357
Application No. 07/739,050
expectation of producing an ozone-enriched gas useful for
bleaching pulp. Not only is the concentration level of carbon
dioxide recognized
in the art as a result effective variable (see In re Woodruff,
919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990);
In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA
1980)), but also one of ordinary skill in the art would have
had an economic incentive to use a recycle gas stream having a
higher carbon dioxide concentration level, such as that
claimed, for a given system to reduce the cost associated with
removing carbon dioxide from the recycle oxygen gas stream
(obtaining a high purity oxygen gas) and replenishing the
recycle oxygen gas stream with costly oxygen for the purpose
of operating the ozonator at near or full capacity, at the
expense of energy efficiency and ozone yield (see In re
Thompson, 545 F.2d 1290, 1294, 192 USPQ 275, 277 (CCPA 1976);
In re Clinton, 527 F.2d 1226, 1229, 188 USPQ 365, 367 (CCPA
1976)).
As a rebuttal to the prima facie case of obviousness,
appellants rely on a Rule 132 declaration of Spencer W.
Eachus. See Brief, page 9. According to appellants (Brief,
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