Appeal No. 96-2898
Application No. 08/340,998
of the individual components of said invention (brief, page
4).” Appellants characterize the data in Tables II and III of
their specification as a dramatic illustration of synergism
with respect to pour point reduction of certain lubricants
when the claimed additive combination is added. However, we
point out that while synergism is one factor to be considered
in the ultimate determination of obviousness of a composition,
“no magic status” should be attributed to synergism per se
“because it may be expected or unexpected”. In re
Huellmantel, 324 F.2d 998, 1002, 139 USPQ 496, 500 (CCPA
1963). Here, appellants have failed to establish a factual
basis for determining whether the reported data actually
represents unexpected synergism in this art. It is well2
2In Smalheer et al. (Smalheer), LUBRICANT ADDITIVES, The
Lezius-Hiles Co., Cleveland, Ohio, copyright 1967, pp. 1-11
(copy attached) at page 8, it is indicated that even the small
amount of wax remaining after dewaxing of “paraffin wax
present in almost all heavy mineral oil fractions” can raise
“by tens of degrees Fahrenheit the temperature at which an oil
will flow freely as measured by suitable “pour point” tests.
Thus, it is questioned whether the use of a composition
comprised of a blend of a copolymer known to disperse or
solubilize wax with a copolymer known to reduce pour point
would have been expected by a person of ordinary skill in this
art to simply demonstrate an additive effect in reducing the
pour point of a given lubricant.
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