Appeal No. 1997-3678
Application No. 08/485,161
reveals what is intended by this claimed limitation during the
initial ascent. Appellant makes us aware in Table 1
(specification, page 20) that, compared to the measured
reversal of trend for the present invention, the reversal of
trend with Thermoexcel-E of the Marto and Lepere article
(1982) is significantly higher. As this Table indicates
appellant’s invention yields reversals of trend less than 2°C,
as now claimed. The examiner’s concern (answer, page 11)
regarding what additional testing, vis-a-vis the teachings in
the Marto and Lepere, might reveal can only be fairly viewed
as speculation. Thus, based upon the evidence before us, we
conclude that as to the important specific limitation of a
reversal of trend less than 2°C in claim 1, we find that the
applied teachings neither teach the limitation nor would have
been reasonably suggestive thereof. It follows, therefore,
that the rejection under
35 U.S.C. § 103 cannot be sustained.
The rejection under 35 U.S.C. § 102(b) and
alternatively under 35 U.S.C. § 103
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