Appeal 1997-2575
Application 08/524,661
arguendo that the 1.3 ratio is critical, it does not render
the claimed subject matter non-obvious in light of Beers'
teaching to use ratios of up to 4.0.
B. Discussion
If the obviousness issue could have been resolved on the
basis of Beers sans Example 3, a decision on the appeal would
be relatively straightforward. There is no suggestion in
Beers to use a calcium carbonate filler having more than 0.2%
water when the filler is used in an amount of more than 15% by
weight (col. 5, lines 47-52). However, in the examiner's
view, what Beers seems to take away in col. 5, lines 47-52 he
gives right back in Example 3. Moreover, the examiner notes
that Beers tells us that if there is a gelation or vulcanizing
problem, the solution is to add more oxime up to a ratio of
4.0 [applicant's ratio being greater than 1.3]. Furthermore,
the examiner notes that many of the properties of the Example
3 sealant are similar to those described by applicant for
compositions made according to the claimed invention. Hence,
the examiner reasons--not without some basis--that if the
product of Example 3 gels in a tube, then the solution to
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