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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