Appeal No. 1999-1267
Application No. 08/755,150
“about 6.8” upper end of patentee’s pH range would have
rendered obvious the appellants’ “7.5” lower end of the pH
range recited in the appealed indepdendent claims.
The examiner’s rationale is not without factual and legal
support. Nevertheless, we cannot agree with his consequent
obviousness conclusion. In essence, we share the appellants’
viewpoint that Benton’s upper pH value would have not have
suggested the here-claimed lower pH value because of the
acidic versus alkaline characteristics of these respective
values and because the actual difference in these values is
significant due to the logarithmic nature of the pH scale.
Furthermore, the nonobviousness conclusion resulting from this
viewpoint is reinforced by Benton’s disclosure at lines 29-34
in column
3 which effectively teaches away from the use of alkaline pH
values such as those here-claimed.
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