Appeal No. 95-1083
Application No. 08/004,444
On the record before us, the examiner has not met the initial burden of establishing
why it would have been obvious to those of ordinary skill in the art to substitute a
manganese complex of the appealed claims for those compounds disclosed by the
references relied on. As pointed out by appellants (principal brief, pages 10-11), none of
the primary references disclose the specific manganese
complexes of the claims. The examiner takes the position that (Answer, page 8):
Manganese is a well known transition metal and therefore the instant
compounds would be expected to possess activity complexed with
Manganese as well as any other transition metal, absent evidence to the
contrary.
However, appellants point to Kimura (O) and Kimura (E) as evidencing the
unpredictability associated with the use of different transition metal in such complexes.
(Brief, page 11). Specifically, Kimura (E), at page 177, first column, discloses that activity
is unpredictable where the transition metal is selected between Cu(II) and Ni(II). The Cu
complex is shown to be active and the Ni complex is inactive. This evidence reasonably
appears to suggest that one of ordinary skilled in this art would not necessarily expect
other transition metals, so complexed, to be similarly active. As further evidence of
unpredictability, the appellants cite EP 524 161 A1 as disclosing 17 similar compounds
closely related to the claim designated compounds which have no detectable superoxide
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