Appeal No. 1996-1529
Application No. 08/233,219
3
explained the effect of such a multiplicity of variables upon the resulting data. Moreover, obtaining
polymers of increased molecular weight when the reaction system is refluxed, i.e., heated, may not be
an unexpected result in view of Farooq’s disclosure that using heat can induce initiation of
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polymerization or increase its rate, depending upon the type of cationic initiator used (col. 8, lines 5-8).
Appellants have the burden of explaining their data.
For the above reasons, we determine that appellants have not met their burden of showing
unexpected results. Reevaluating the patentability based on the total record, we determine that the
preponderance of the evidence weighs in favor of obviousness within the meaning of § 103, giving due
consideration to appellants’ arguments and evidence. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Accordingly, the rejection of claims 17-19 under 35 U.S.C. §
103 as being unpatentable over Wardle in view of Farooq is sustained.
3According to appellants’ specification, “[t]he resulting polymer is of a predictable molecular weight based
upon the relative amounts of alkylating salt, alcohol, and monomer” (page 6, lines 24-26). Thus, these relative
amounts appear to be result-effective variables.
4The examiner has not rejected the claimed product over the product polymers of Farooq. However, in the
event of further prosecution, the examiner and appellants should review the complete disclosure in Farooq, including
its disclosure of a cationic polymerization initiator comprising an oxonium salt, e.g., triethoxyononium, and a non-
nucleophilic counterion which is an at least partially fluorinated hydrocarbylsulfonato metallate, the use of heat to
induce or accelerate the polymerization reaction, and obtention of high molecular weight polymers, e.g., with M of
w
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6.85 x 10 (col. 2, lines 5-56; col. 14, line 60 - col. 15, line 33) in view of the above discussion on the patentability of a
product-by-process and take appropriate action.
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