Appeal No. 1999-1008
Application 08/713,905
teaches that the phosgenation of aromatic diamines to the corresponding aromatic diisocyanates
can be conducted with an excess of phosgene in the vapor phase with an inert, diluent carrier gas
at a temperature above the boiling point of the diamine, generally from 200° to 600° C and under
pressure (cols. 1-5). The inert, diluent carrier gases used by Biskup (col. 3, lines 1-6) correspond
to several of the solvents used by Lehmann. Bischof discloses that the phosgenation of aliphatic
and cycloaliphatic diamines to the corresponding diisocyanates can be conducted with an excess
of phosgene in the vapor phase with an inert, diluent carrier gas at a temperature of from 200° to
600° C and under pressure (cols. 1-4). The inert, diluent carrier gases used by Bischof (col. 3,
lines 19-28) correspond to several of the solvents used by Lehmann.
The plain language of appealed claim 1, when considered in light of the written
description in the specification as interpreted by one of ordinary skill in this art, see, e.g., In re
Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997), requires only that any
ether (poly)amine is phosgenated with at least a stoichiometric amount of phosgene in the vapor
phase at a temperature of from about 50 to about 800°C under at least some pressure. We find
that, based on the evidence in the combined teachings of Lehmann, Joulak, Biskup and Bischof,
prima facie, one of ordinary skill in this art would have found therein the suggestion to conduct
the phosgenation of the ether (poly)amine of Lehmann in the vapor phase in an excess of
phosgene, using the same solvents taught by Lehmann as the inert carrier gas, and at 200°C under
pressure, with the reasonable expectation of obtaining the corresponding ether (poly)isocyanate
with a reduced amount of ether cleavage products. Accordingly, we determine that one of
ordinary skill in this art following the combined teachings of the applied references would have
routinely arrived at processes falling within appealed claim 1. See, e.g., In re Dow Chem. Co.,
837 F.2d 469, 473, 5 USPQ2d 1529, 1531-32 (Fed. Cir. 1988) (“The consistent criterion for
determination of obviousness is whether the prior art would have suggested to one of ordinary
skill in the art that [the claimed process] should be carried out and would have a reasonable
likelihood of success viewed in light of the prior art. [Citations omitted] Both the suggestion and
the expectation of success must be founded in the prior art, not in the applicant’s disclosure.”); In
re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981) (“The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated into the structure of the
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