Appeal No. 2001-0901 Page 5
Application No. 08/937,297
sets out on page 5 of the answer that blending two known colorants to make a third color hue would
have been prima facie obvious; and that optimizing the amounts/ratio of colorants to define a desired
hue would have been prima facie obvious optimization of a known result effective variable (that is, the
amounts/ratio of the two colorants is a known result effective variable for obtaining a desired color
hue). This may be true, however, we do not agree with the Examiner’s position that optimizing the
amounts/ratio of colorants to obtain the here claimed pH range, or to adjust the pH of the resulting
blend to the Appellants’ claimed essential pH range, would have been a prima facie obvious
optimization of a known result effective variable.
The Examiner’s position on this point is summarized on page 23 of the answer as follows:
Again, it is important to note that the product in the reference combination
contains two colorants each of which have initial pH values within the ranges recited.
The pH of the colorant blend is therefore inherently dependent upon the amounts/weight
ratio of the colorants. Therefore blending the two components, solely for the purpose
of achieving the desired final hue, would also inherently adjust the pH of the final blend.
The amounts/weight ratio of the colorants is a result effective variable . . . as discussed
above. Therefore the pH of the final colorant blend is also a result effective variable,
dependent upon the amounts/weight ratio of the colorants and the desired final color of
the end product, absent a showing of unexpected results.
We believe that this reasoning is deficient. The final end product colorant blend pH will depend
on the relative amounts of each colorant used, since as here claimed each colorant has a specified, non-
overlapping pH range. But this does not lead to the conclusion that the pH is a known result effective
variable when combining two colorants. What desired result is the pH effecting? We do not see any
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