Appeal No. 1998-1664
Application No. 08/323,982
composition, i.e., would have a metal ratio of at
least 1.35. Accordingly, appellants’ claims are not
distinguished from the prior art based on the amount
of excess metal. [Underscoring added; id. at pp. 5-
6.]
The examiner’s position is untenable. As pointed out by
the appellants (appeal brief, page 6; reply brief, pages 1-2),
neither Adams nor Blystone describes an overbased metal salt
having a metal ratio of 1.3 as recited in claims 1 and 28 on
appeal. The examiner apparently relies on what he perceives
to be a trend in Adams’s or Blystone’s preferred, “more”
preferred, and “even more” preferred excess metal amounts to
speculate on the meaning of “slightly basic” as used in these
references. However, the examiner’s reasoning relies heavily
on unwarranted assumptions rather than factual evidence.
Under these circumstances, we reverse the examiner’s
rejections under 35 U.S.C. § 102(g) of (i) appealed claims 1
through 8, 19 through 21, 23, 28 through 33, 44 through 47,
and 51 through 56 as anticipated by Adams and (ii) appealed
claims 1 through 8, 19 through 21, 23, 28 through 33, 44
through 47, 51 through 62, 75 through 77, 81 through 83, 101,
and 102 as anticipated by Blystone.
Rejections III and IV
7
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