The basic premise of each of the balance of the rejections is that Bugnon discloses numerous organic pigments
including diketo-pyrrolopyrrole pigments as functionally equivalent pigments. It is the examiner’s position that it
would have been obvious to one of ordinary skill in the art to substitute the diketo-pyrrolopyrrole pigments of
Bugnon for the pigments taught by Hopfenberg, Answer, pages 4 and 5, and Martin, as Martin does not disclose the
claimed specific diketo-pyrrolopyrrole pigments. See Answer, page 6. We disagree.
Bugnon discloses coating organic pigments with fixed metal oxides additionally having a dense highly
crosslinked coating of silica and/or alumina fixed by polycondensation of a silicate and/or aluminate with the free
hydroxy groups of ethyl cellulose. See Bugnon, column 1, lines 43-50. Although the examiner suggests substituting
the pigments for each other, the pigments of Bugnon do not exist as separate entities as discussed supra, but as
coated fixed oxide entities. Moreover, no explanation is offered by the examiner as to why the person having
ordinary skill in the art would have taken the fixed oxide layer taught by Bugnon, removed the highly crosslinked
coating of silica and/or alumina, removed the oxide layer and substituted the polyvinyl pyrrolidone layer of
Hopfenberg. In the absence of such an explanation, no prima facie case of obviousness can be established.
Furthermore, the second declaration of Bugnon, directed to a comparison of two different amounts of diketo-
pyrrolopyrrole pigments coated respectively with 4.996% and 28% polyvinyl pyrrolidone, provides additional
evidence of the unexpected superiority of appellants’ claimed subject matter over the closest prior art.
Based upon the above analysis, 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).
DECISION
The rejection of claims 12, 19, 22, 24 and 26 under 35 U.S.C. § 103 as being unpatentable over Hopfenberg in view
of Kamada is reversed.
The rejection of claims 12, 19, 22, 24 and 26 under 35 U.S.C. § 103 as being unpatentable over Hopfenberg as
modified by Kamada as applied to claims 12, 19, 22, 24 and 26 above and further in view of Bugnon is reversed.
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