Appeal No. 2002-0448 Page 8
Application No. 09/194,824
failed to establish that a person of ordinary skill in the art at the time the
invention was made, armed with the combined teachings of Pereira, Tesmann
and Turchini, would have expected that the reaction product of hydroxycarboxylic
acid and a fatty alcohol polyglycol ether of the formula R1O(CH2CH2O) nH would
have a Brookfield viscosity of at least 2,000 mPas, as is required by appellants’
claimed invention.
While, as the examiner points out (Answer, page 11), “Pereira teaches the
formation of similar type compounds and their utility as a thickner,” Pereira stops
short of identifying the viscosity of these compounds. As for Tesmann,
appellants argue (Brief, page 7), “while it may be relied upon by the [e]xaminer to
show that ethoxylated fatty alcohols can be used to increase the viscosity of
aqueous compositions, the claimed invention is not directed to the use of
ethoxylated fatty alcohols to achieve this result.” We are not persuaded by the
weight the examiner places on the ability of a structurally similar precursor
(ethoxylated fatty alcohols) of Pereira’s final compounds to increase the viscosity
of aqueous compositions. Answer, bridging paragraph, pages 11-12. As
appellants explain (Brief, page 6), “the molar ratio of alcohol to acid, the
temperature at which the reaction is performed, the pressure at which the
reaction is performed, and the length of time of the reaction, all contribute to the
characteristics of the resultant reaction product, including its viscosity.” We are
not persuaded by the examiner’s argument (Answer, page 13),
one of ordinary skill in the art would have been motivated to use
the combined teachings of Pereira, Turchini and Tesmann and
react a hydroxycarboxylic acids such as citric acid as used by
Pereira, with the polyoxylated alcohols of Turchini (fatty alcohol
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