Appeal No. 2001-0729
Application No. 09/013,091
referencing Asami, column 43, lines 7-11. The examiner also
notes Asami’s disclosure that any gold sensitizer may be used as
a noble metal sensitizer. Id., referencing column 43, lines 39-
46 of Asami.
The examiner relies on Ohzeki as demonstrating that gold
sulfide is a commonly used gold sensitizer. Id. at page 6.
According to the examiner,
[t]he examples of the reference use the combination of
sodium thiosulfate and chloroauric acid (column 58,
lines 52-67). As gold sulfide and chloroauric acid are
taught to be equivalent, one of ordinary skill in the
art would have been motivated to replace the
chloroauric acid with gold sulfide with reasonable
expectation of achieving equivalent sensitivity.
Id. Thus, the examiner concludes that
“[g]iven the teaching of Ohzeki, it would have been
obvious to one of ordinary skill in the art to prepare
a photographic material comprising the grains of Asami
sensitized with sodium thiosulfate and gold sulfide as
the sulfur and gold sensitizers each in an amount
meeting the limitations of the present claims with
reasonable expectation for achieving a photographic
material excellent in resistance to damage by pressure
and excellent in color reproduction.”
Id. at pages 5-6.
Based on our review of the Asami and Ohzeki references, we
are in agreement with appellants that the examiner’s position is
based upon improper hindsight reconstruction. See appeal brief,
page 6, last paragraph (“It is respectively urged that the
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