Level of skill in the art
9. Shafer provides considerable guidance to those
having ordinary skill in the art with respect to cooling (col. 2,
lines 26-58).
10. For example, Shafer describes adduct
crystallization in two stages (col. 2, lines 44-46), each stage
using different temperatures (col. 2, line 48 and 52).
11. From Shafer, one having ordinary skill in the art
would learn that the rate and yield of crystallization is a
function of how crystallization is effected over different
temperatures.14
12. Shafer suggests to one skilled in the art that
lowering the temperature incrementally is a suitable method of
effecting cooling and that the rate of cooling is a matter to be
determined on a case-by-case basis.
13. Applicant, on this record, has not established
that the rate at which temperature is lowered is in any way
critical to obtaining the result sought by the process, i.e.,
essentially pure diphenyl carbonate.
14 The level of skill in the art provides substantial evidence for the
examiner's rather cryptic holding that "[c]hanging the rate at which a lower
temperature is reached is an obvious variation" (Examiner's Answer, page 4).
Given the discussion by Shafer, what the examiner probably intended to say was
that determining the rate at which the temperature should be lowered to obtain
acceptable results for a given process is a matter within the skill of the art
to be determined on a case-by-case basis.
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