Appeal 1997-2575
Application 08/524,661
ratio of 1.2 to 4.0 otherwise described by Beers (col. 5,
lines 32-36).
"Criticality" of "greater than 1.3" limitation
17. The examiner is of the view that applicant has
not establish any "criticality" with respect to the limitation
which requires a ketoximosilane to silanol ratio of greater
than 1.3.
18. Initially, the examiner notes that applicant
describes sealants which can be made using a ratio of 1.2
(specification, page 3, last two lines and page 7, lines 4-5).
19. The examiner also took notice of the properties
said to have been obtained with samples A through G3
(specification, page 13, Table 1) vis-a-vis the properties of
Applicant relies on experimental data set out in the specification in support of3
the appeal. We likewise have relied on the data and found it material in rendering our
decision. Moveover, in reaching our decision, we have made the following assumptions:
(1) the data set out in the specification upon which applicant relies is based on actual
experimentation, (2) the data is accurately set out in the specification and (3) the
data is not based on prophetic examples [see Hoffmann-La Roche, Inc. v. Promega Corp.,
1999 U.S. Dist. LEXIS 19059, Civil Action C-93-1748-VRW (N.D. Cal. Dec. 7, 1999)
(Findings of Fact 56-60, 63-66, 69, 105-106, 112, 131 and 136 and Conclusions of Law 32
and 35)]. We also have relied on the fact that there is no other data known to
applicant or the real party in interest which (1) would tend to contradict the
experimental data set out in the specification and (2) was not called to our attention
in the brief and/or reply brief on appeal [see 37 CFR § 1.56(b)(2)]. If any assumption
is not correct, applicant(s) should immediately notify the board in the form of a
request for reconsideration.
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