Ex Parte WELSH et al - Page 5

          Appeal No. 1997-1791                                                        
          Application No. 08/485,304                                                  

               As additional evidence that the hydrogel of Cohen does not             
          inherently comprise a volatiles content of at least 40 wt.%,                
          appellants offer the declarations of Dr. Stephen R. Schmidt, a              
          co-inventor of the present application, and James Neil Pryor.               
          Both declarants qualify as a person having skill in the art of              
          silica gels.  The Schmidt Declaration states that the oil                   
          absorption value for the hydrogel listed in Cohen's TABLE II                
          (258) is "indicative of gels in which the liquid media has been             
          removed, and are therefore not hydrogels" (page 2 of Declaration,           
          last full paragraph).  In response to the Schmidt Declaration,              
          the examiner states that "[i]t is note [sic, noted] that it is              
          notoriously well known that hydrogels can have high oil                     
          absorption values" (page 5 of Answer), but the examiner offers no           
          evidence in support of the statement.  Regarding the Pryor                  
          Declaration, the declarant states that "[f]rom the above                    
          information, I further conclude that the volatiles content of               
          'Improved (ASH) was less than 24 wt.%, more likely about                    
          4.2 wt.%" (paragraph 14 of Declaration).  On the other hand,                
          while the examiner criticizes the confusing nature of the Pryor             
          Declaration with respect to the discussion of the oil absorption            
          data, the examiner does not address the conclusion stated by the            
          declarant at paragraph 14.                                                  
               In conclusion, based on the foregoing, it is our judgment              
          that the evidence of record, considered as a whole, does not                


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