Appeal No. 1997-3701 18
Application No. 08/141,457
With respect to the balance of the claims separately argued, we adopt the position
of the examiner as set forth on pages 26 and 27 of the Answer.
We further note that the Merkel Declaration contains a statement that Merkel, “did
not expect that the conjoint use of sulfide, sulfoxide or sulfone compounds of the
invention with the aryloxypyrazolone couplers of the invention would improve the
keeping of the couplers.” See declaration, page 2. The issue before us however, is
directed to the scope of the showing as opposed to the specific unexpected results shown
in Tables 1 to 4 and the statement in the declaration cited above. Accordingly, we do
not find the declaration to be persuasive of patentability or entitled to more than limited
weight.
One further issue is worthy of consideration. Although the examiner has stated
that the, “magnitude of improvement of the properties of raw stock keeping in
Appellants’ comparative data of the specification are unexpected,” Answer, page 23, the
improvement in stability of the layer in our view is not entirely unexpected. Each of the
secondary references, in their own right, teaches that the addition of sulfur compounds,
whether sulfide, sulfoxy or sulfone moieties, improve the stability of photographic
elements including magenta layers comprising pyrazolone couplers. In our view, it would
be expected, based on the numerous teachings of record present, that the addition of the
sulfur containing stabilizer not only improve the stability of pyrazolone couplers disclosed
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