Appeal No. 97-2220
Application 08/250,607
of manganese and phosphorous are known, and are known to be corrosion resistant, have
good thermal conductivity, and be readily solderable. [Id., page 7.]
In further response to appellants’ arguments in their principal brief, the examiner makes the following
two statements with respect to Hensel. At pages 9-10 of the answer:
Switching one known corrosion resistant copper alloy for another is a substitution of known
equivalents which would be well within the level of ordinary skill in the art. Indeed, if one
constructed a “shopping list” of properties necessary for a suitable alloy which could be used
to make heat exchanger tubes, one could hardly do better than the properties of
anticorrsiveness, easy solderability, and good thermal conductivity which Hensel et al.
ascribe to their alloy.
As has been pointed out previously, applicants are not claiming a novel compound, but
rather a narrow range of percentages of ingredients within the broader ranges disclosed in
Hensel et al. It is considered obvious to determine optimum concentrations and/or ranges of
ingredients, provided the prior art teaches the ‘general conditions of a claim’, [sic] in this
case the basic ingredients and general proportions are taught in Hensel et al. [Id., pages 10-
11.]
And, at page 13 of the answer:
In this case, Hensel et al. do teach controlling the percentages of both phosphorous and
manganese within certain ranges. There are [sic] is nothing which must be “read into” Hensel
et al. . . . to create the implication that Hensel et al. teach controlling the respective ratios of
phosphorous, manganese, and copper to produce the desired alloy of “improved
characteristics” including those listed previously; it is right there on page 1 of Hensel et al. If
Hensel et al. did not believe phosphorous and manganese content to be “result effective”
variables, they would not have stipulated utilizing a limited range of percentages of these
additives.
Thus, it is clear from the answer, in both the statement of the rejections and in response to
appellants’ arguments in their principal brief, that the examiner was relying on the copper based alloy
and the ranges and ratios of manganese and phosphorous contained therein to achieve the properties of
corrosion resistant, thermal conductivity, solderability taught at least “right there on page 1 of Hensel et
al.” (answer, page 13). Indeed, it is apparent from appellants’ principal brief that they argue the ranges
and ratios of the same two ingredients as well as the same or similar properties of their claimed copper
alloys, as disclosed in their specification (principal brief, e.g., pages 7-8), vis-à-vis the copper alloys as
taught in Hensel with respect to Hensel alone and as combined with Miura (principal brief, pages 6-10).
Appellants then allege that the specification Examples and Comparative Examples show the criticality of
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