Appeal No. 97-2220
Application 08/250,607
We note in this respect that while appellants admitted that phosphorous deoxidized copper alloys were
known for heat exchangers, the only ratios of ingredients of such alloys which may be gleaned from
appellants’ specification were disclosed in the specification Comparative Examples (see, e.g., Table 1).
Cf. In re Nomiya, 509 F.2d 566, 570-71, 184 USPQ 607, 611 (CCPA 1975). However, it is
apparent from our opinion (decision, e.g., pages 5-7) that we relied on the teachings of Hensel as relied
on by the examiner in this respect, and not on the alloys of the Comparative Examples in affirming the
examiner’s grounds of rejection.
Moreover, appellants in their arguments in the principal brief (pages 7-8) relied on the recitation
of certain problems and of “better” ant-nest corrosion resistance and brazing properties with respect to
known phosphorous deoxidized copper alloy tubes set forth in the specification, and thus they were not
placed at any disadvantage by our recognition of the admitted state of the art that they considered so
significant as to frame their application and evidence of non-obviousness in that regard. And, indeed,
appellants continue to rely on such admissions in the present request wherein appellants state in their
argument advanced in point “4,” “[i]n view of the Board’s reliance on Appellants’ so-called admitted
state of the art, it is submitted that the closest prior art is the conventional phosphorous deoxidized
copper tubes used in the prior art in heat exchangers of the type disclosed herein” Cf. Hedges, supra.
In this respect, we are unconvinced by appellants’ argument (request, page 6) that our consideration of
appellants’ admissions in the specification in responding to an argument advanced by appellants based
on the zinc content of the alloys of Miura in comparison to the alloys of Hensel is indicative of a new
ground of rejection.
Furthermore, as stated by appellants, we did find that Hensel, in the second col., lines 7-11,
would have disclosed to one of ordinary skill in this art that when phosphorous is used in a slight excess,
phosphorous deoxidized copper alloys are obtained (decision, page 5) and thereafter cited that
disclosure in considering the examiner’s grounds of rejection. However, as we noted above, this
reference, as relied on by the examiner, teaches 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 at least “right there on page 1” (answer, page 13). Thus, one of ordinary skill
in this art routinely following the teachings of at least page 1 of Hensel would have arrived at
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