Appeal No. 2001-0901 Page 7
Application No. 08/937,297
In light of the aforementioned quotation, it is clear that while the blend may have a pH within
the claimed range, it also may not have such a pH (and will then need to be treated). Thus, it cannot
be said that the claimed pH range will inherently result (i.e., always result) upon blending the two
claimed colorants together. See Oelrich, 666 F.2d at 581, 212 USPQ at 326.
For the reasons set forth above, we agree with the Appellants that there is no appreciation in
the art of record that pH of the colorant blend is a known result effective variable when combining two
colorants to make a colorant blend. It is also clear that the claimed pH range will not inherently occur
(i.e., always occur) upon blending these two colorants. Under these circumstances, we cannot accept
the Examiner's position that it would have been prima facie obvious optimization of a known result
effective variable to obtain the resulting pH range claimed herein of the colorant blend.
In light of the foregoing, we cannot sustain the Examiner's § 103 rejection of the appealed
claims.
OTHER ISSUES
A continuation application, Serial No. 09/697,172, of this application was allowed on February
1, 2002 and appears to contain claims drawn to subject matter at least similar to the
combination set forth in claim 9 herein. The Examiner and the Appellants should review those claims
and consider whether an obviousness type double patenting rejection should be made.
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