Appeal No. 1997-3770
Application No. 08/451,888
Moreover, we find that the compounds include metallic thiophosphates wherein sulfur has
been replaced by a metal, i.e., tellurium. Id. We find it reasonable to conclude that it
would have been obvious to the person having ordinary skill in the art to prepare mixture
of these compounds including polysulfides and metallic thiophosphates, particularly as
Froeschmann repeatedly stresses synergistic mixtures, commercial mixtures and compounds
plural. See column 3, lines 13-16, 17-21 and column 1, lines 34-36 respectively. The
combination of organic polysulfide and metallic thiophosphate corresponds to (B)ii of the
claimed subject matter.
Based upon these findings, we conclude that the disclosure of Froeschmann in and of
itself is sufficient to establish a prima facie case of obviousness with respect to the claimed
subject matter.
Appellants argue that the claims are limited to lubricating compositions where the
molybdenum is present in an amount to provide from about 125 to about 900 ppm. See
Brief, page 10. However, our construction of the claimed subject matter is that the
proviso, “when (A) is a molybdenum dithiophosphate, then (A) is present in an amount to
provide from about 125 to about 900 ppm molybdenum to the lubricating composition,”
applies if and only if molybdenum dithiophosphate is the (A) component. When the (A)
component is other than molybdenum dithiophosphate, there is no limitation as to the
amount of molybdenum that may be present. Since none of Le Suer, Gallo or
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