Appeal No. 1997-2958 9
Application No. 08/401,719
manufacture compositions and make physical comparisons. Cf. In re Brown, 459 F.2d 531, 535,
173 USPQ 685, 688 (CCPA 1972).
It is noted that several of the inventors of the Komatsubara alloy are listed as inventors in this
appealed application. In addition, Sky Aluminum is an assignee in both this application and the
Komatsubara reference. The appellants, having developed both the alloy of the prior art and the
claimed alloy, are presumed to have access to data, or the facilities to obtain data, that would show that
the Komatsubara alloy normally would contain sodium and calcium as impurities. No evidence or even
a scientific rationale for believing that sodium or calcium is normally present was ever introduced into
the record by appellants. We find that the examiner’s conclusion that Komatsubara teaches the
claimed composition is reasonable under the circumstances.
The Process Steps of Claim 4
Claim 4 sets forth steps of casting, rolling and final annealing the alloy composition. As the
examiner points out in the final rejection, Komatsubara forms the plate by casting, rolling and optionally
annealing. Appellants challenge two points of the rejection. Appellants argue that Komatsubara does
not teach the claimed cold rolling rate of at least 50% and also that Komatsubara does not teach the
claimed final annealing processing parameters.
In regard to the cold rolling rate, claim 4 recites “rolling the cast alloy to a final plate thickness,
said rolling step including setting a cold rolling rate at a final stage to at least 50%”. The examiner
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