Appeal No. 2003-0802 Page 7
Application No. 09/180,108
opportunity to rebut with objective evidence any inference of obviousness which may arise from
the similarity of the subject matter which he claims to the prior art, but it has no place in the
making of a Section 102, anticipation rejection. See In re Arkley, 455 F.2d 586, 587, 172 USPQ
524, 526 (CCPA 1972).
Appellants include an argument directed to non-entered claim 24 (Brief, p. 5). As this
claim was denied entry by the Examiner, it is not on appeal. Nor will we determine whether the
denial of entry was proper. Such a matter is petitionable and not under our jurisdiction. 35
U.S.C. §§ 7(b) and 134 (2003); In re Hengehold, 440 F.2d 1395, 1404, 169 USPQ 473, 480
(CCPA 1971).
Claim 16
We agree with the Examiner that it would have been obvious to use the builders
suggested by Labeque in the composition of Evers (Answer, pp. 5-6). Evers specifically
indicates that builders can be included (Evers, col. 3, ll. 50-53). Labeque indicates that
carbonates and polycarboxylates are conventional builders (Labeque, col. 13, ll. 25-30 and col.
14, ll. 23-41). Use of one of the conventionally known builders, or a combination thereof, would
have been obvious to one of ordinary skill in the art.
Appellants argue that one would not take the longer alkyl chain ethoxylated alkyl sulfates
of Labeque for use in the combinations of Evers since Evers teaches directly away from the use
of such materials (Brief, p. 5). Evers does not teach away. In fact, Evers indicates that suitable
long chain surfactants are those listed in the description of short chain surfactants. The
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