Appeal No. 1996-3017
Application No. 08/851,810
since in most cases the mixture will be contaminated
with a variety of unidentified inorganic, organic
components and one skilled in the art of organic
synthesis would be capable of picking one over
another well-known technique to achieve their goals
- whether it be highest possible yield at the
expense of some purity or very high purity at the
expense of yield or combination of techniques for
achieving highest possible yield and
purity. [Sentence bridging pages 6 and 7 of
Answer).
Regarding appellant's argument at page 19 of the
principal brief that "Bonzom refers only to neutralization
which, it is submitted, is distinct from adjusting the pH to
an alkaline condition, as claimed in claim 2, and clearly,
Bonzom is not suggestive of adjusting the pH to a pH of at
least about 8, as affirmatively recited in claim 5," it is
well settled that where patentability is predicated upon a
change in a condition of a prior art process, such as a change
in pH, temperature, and pressure or the like, the burden is on
the applicant to establish with objective evidence that the
change is critical, i.e., it leads to a new and unexpected
result. In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934,
1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456, 105
USPQ 233, 235 (CCPA 1955). In the present case, appellant has
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