Appeal No. 1997-0545
Application 08/224,063
temperature of about 55° C used in the reaction mixture of Olson is equivalent to the external heating
employed in the “heated melt mixing” discussed with respect to one prior art method in their
specification (page 3) and the prior art discussed in Schumann. As we found above with respect to the
temperature range in Schumann, in view of the temperature range in appellants’ definition of “ambient” in
the specification and the maximum temperatures reported in specification Table 9, there is no basis in
the record for the submitted arguments based on “heated melt mixing.” Furthermore, we do not find in
such argument any evidence of the criticality of the mixture temperature at the highest “ambient”
temperature of about 50° C vis-à-vis the upper portion of the Olson range of about 48° to about 55°C,
that is, of about 50° C to about 55° C. Accordingly, in the absence of a showing of the criticality of
using no externally supplied heat, through “ambient” temperatures or other source, above about 50° C,
that is, about 50° C to about 55° C, we must affirm the rejection under § 103 based on Olson. See
Woodruff, supra.
We are no more persuaded by appellants’ arguments with respect to externally supplied heat
with respect to the ground of rejection of claim 107 under § 103 based on the combined teachings of
Olson and Schumann which are essentially the same arguments submitted with respect to these
references individually (principal brief, pages 12-13). Thus, in the absence of a showing of the criticality
of the temperature range as we discussed with respect to Olson above, we must also affirm this ground
of rejection. See Woodruff, supra.
Therefore, based on our consideration of the totality of the record before us, we have
weighed the evidence of anticipation and obviousness found in Schumann and the evidence of
obviousness found in Olson and in the combined teachings of Olson and Schumann with appellants’
countervailing evidence of and argument for non-anticipation and nonobviousness, and conclude that
the claimed invention encompassed by appealed claims 92 through 96, 100 through 102 and 105
through 113 are anticipated as a matter of fact under 35 U.S.C. § 102(b) and would have been
obvious as a matter of law under 35 U.S.C. § 103 over Schumann; that claims 92 through 106 and
108 through 113 would have been obvious as a matter of law under 35 U.S.C. § 103 over Olson;
and that claim 107 would have been obvious as a matter of law under 35 U.S.C. § 103 over the
combined teachings of Olson and Schumann.
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