Appeal 97-1554
Application 08/495,593
polyisobutylamines is a reference to the then commercial
product which contains chlorine.
The record suggests that at the time Rath filed in
Germany (5 August 1988) the Kummer German Patent Application
had probably been published (eighteen months after 4 April
1986 or about 4 October 1987). In any event, the Kummer U.S.
Patent was issued (23 May 1989) before Rath filed in the
United States (29 April 1991). More to the point, however, is
the proposition that it does not matter to what
polyisobutylamines Rath may have been referring. In re
Kleinman, 484 F.2d 1389, 179 USPQ 244 (CCPA 1973) (there is no
presumption, rebuttable or not, that the holder of a patent
had constructive or actual knowledge of specific prior art
when he made the invention -- hypothetical person skilled in
art does have constructive knowledge). A person having
ordinary skill in the art at the time applicants made their
invention, aware of both Kummer and Rath, would have been
highly motivated to use the polyisobutylamines of Kummer if
for no other reason that to avoid the presence of chlorine.
The appeal does not involve a question of what might have been
obvious to Rath. Rather, the issue is whether the claimed
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