Appeal No. 1996-2928
Application 08/313,727
subject matter wherein, “a composition containing a C - C fatty acid residue with at most one fatty12 22
acid residue group (RCOO) per two zinc atoms,” is formed. However, neither Brannen nor Elliott
suggests the stoichiometry of the claimed subject matter. Brannen teaches, “equimolar quantities,”
Example 1 and, “equimolar amounts,” claim 1. Similarly, column 2, lines 33-35 of Elliott require that
the amount of carboxylate, sulfonate or phosphate be sufficient to satisfy the valence of the polyvalent
metal. In order to satisfy the valency of M, we need four fatty acid residues per two zinc atoms.
Accordingly, the proportions taught in each reference are four times as much as the maximum set by the
claimed subject matter. Based upon the above findings, even were we to choose both phosphate and
carboxylate moieties, we conclude that there is no teaching or suggestion to choose the proportions of
the claimed subject matter.
Accordingly, we have determined that the examiner’s legal conclusion of obviousness is not
supported by the facts. “Where the legal conclusion [of obviousness] is not supported by the facts it
cannot stand.” In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
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