Appeal No. 2002-0438 Page 5
Application No. 09/181,671
The rejection of record does not meet the above criteria. Dieter, while
teaching the compound that is the subject of the claims is known, does not teach
or suggest that the compound has different crystalline structures. Thus, the
rejection of record does not set forth any motivation to combine Dieter with
Kirk-Othmer because, although Kirk-Othmer does teach that it is known that
crystal polymorphism is known generally to exist, there is no teaching or
suggestion in the references that the compound of the claimed invention is
known to exhibit such polymorphism.
Moreover, the record demonstrates that the compound as prepared by the
prior art is a mixture of crystal polymorphs, whereas appellants have succeeded
in isolating thee distinct polymorphs, i.e., Modifications A, B and C. See
Declaration of Wilfried Thiel, Paper No. 9. Thus, the isolated crystal polymorphs
as claimed in the instant application do not appear to be an inherent property of
the claimed compound as disclosed by the prior art of record.
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