Appeal No. 2000-1832
Application 08/868,736
note here that in appealed claim 33, a deplasticizing assistant is added to the aqueous dispersion
and a plasticizing agent is added to the dried intermediate powder.
We agree with appellants that the redispersible addition-polymer powder prepared in
Schulze Example 2 contains both a deplasticizing assistant and a plasticizing assistant.
However, we find that one of ordinary skill in the art would not have found in the disclosure in
col. 3, lines 5-14 and 21-38, of Schulze a specific teaching or inference that the plasticizing agent
must be added to the aqueous addition-polymer powder dispersion in order to incorporate the
same into the addition-polymer powder.2 Instead, we find that one of ordinary skill in this art
would have inferred from the reference that the plasticizing assistant can be added after the
dispersion has been dried from the teaching in Schulze that “cement-plasticizing agents are
preferably added to the mixture present as a dispersion before drying” (col. 3, lines 36-38;
emphasis supplied). Accordingly, we find that one of ordinary skill in this art routinely following
the teachings of Schulze would have arrived at the claimed method encompassed by appealed
claim 33 without recourse to appellants’ specification. See generally, In re Lamberti, 545 F.2d
747, 750, 192 USPQ 278, 280 (CCPA 1976) (“The fact that neither of the references expressly
discloses asymmetrical dialkyl moieties is not controlling; the question under 35 USC 103 is not
merely what the references expressly teach, but what they would have suggested to one of
ordinary skill in the art at the time the claimed invention was made.”).
Accordingly, since a prima facie case of obviousness of the claimed method encompassed
by appealed claim 33 has been established over Schulze, we have again evaluated
all of the evidence of obviousness and nonobviousness based on the record as a whole, giving
due consideration to the weight of appellants’ arguments and the evidence in the specification.
See generally, In re Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984); In re
polymer powder containing plasticizing assistant “T1,” used to form “P2” by the addition of
deplasticizing assistant “T2” is added.
2 It is well settled that a reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in this art would have reasonably been expected to draw
therefrom, see generally, In re Fritch, 972 F.2d 1260, 1264-65, 23 USPQ2d 1780, 1782-83 (Fed.
Cir. 1992); presuming skill on the part of this person. In re Sovish, 769 F.2d 738, 743, 226
USPQ 771, 774 (Fed. Cir. 1985).
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