Appeal No. 2002-1190
Application No. 09/023,470
toxicity" (column 1, lines 31-35). Accordingly, absent evidence
to the contrary, we find it reasonable to conclude that one of
ordinary skill in the art would have understood the present
invention to be inclusive of compositions comprising the known
boron nitride as a nucleating agent. We are not persuaded by
appellants' argument that because one of the purposes of the
present invention is not to form bubbles during extrusion, "the
presence of boron nitride would be inimical to Applicants'
process" (page 5 of Brief, first paragraph). Manifestly, there
is a clear distinction between the formation of unwanted, random
bubbles and deliberate homogenous foaming. As noted by the
examiner, there is no disclosure or suggestion in the present
specification that foaming the extruded fluoropolymer is inimical
to appellants' invention.
Appellants cite Ex parte Parks, 30 USPQ2d 1234, 1236 (Bd.
Pat. App. & Int. 1993) as legal support for the propriety of the
claimed negative limitation in the absence of its disclosure in
the specification. However, unlike in Parks, there is no
declaration evidence of record which establishes that one of
ordinary skill in the art would have recognized that the claimed
extrusion process must be conducted on a fluoropolymer resin that
is free of boron nitride (see Parks at page 1236, last
paragraph). It is well settled that appellants' arguments in the
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