Appeal No. 2003-1162 Page 25
Application No. 09/468,292
claims stand or fall together (Amended Brief, p. 4). We select claim 2 to represent the issues on
appeal with regard to this rejection.
Claim 2 requires that the ionic liquid be heated to a temperature equal to about a
volatilization point of the precursor. The Examiner acknowledges that Frigo does not disclose
heating and cites the AAPA as showing that such heating was known in the art (Answer, pp. 12-
13). The Examiner concludes that such heating would have been obvious to one of ordinary skill
in the art to vaporize the precursors more easily (Answer, p. 16).
Appellant argues that Frigo teaches away from heating the liquid because Frigo performs
the process at ambient temperature and heating would have exacerbated the solvent volatility
problems that concerned Frigo (Amended Brief, pp. 8-9). Appellant further argues that the use of
the term “typically” before ambient temperature in Frigo denotes a strong preference for ambient
temperature which teaches away from heating (Amend Brief, p. 9) and that heating goes against
the accepted wisdom in the art (Amended Brief, p. 9).
“In general, a reference will teach away if it suggests that the line of development flowing
from the reference's disclosure is unlikely to be productive of the result sought by the applicant.”
In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994). In other words, the
reference must lead one of ordinary skill in the art to the conclusion that the process will not
work. See Baxter Int’l, Inc. v. McGaw, Inc., 149 F.3d 1321, 1328, 47 USPQ2d 1225, 1230 (Fed.
Cir. 1998).
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