Appeal No. 2004-0149
Application No. 09/803,612
‘628 and WO ‘787, would have required undue experimentation to
practice the invention. In light of the reference disclosure, the
burden is on appellants to establish that one of ordinary skill in
this art would be unable to resort to routine experimentation to
determine the optimum concentrations and process conditions for
utilizing molecular oxygen as an alternative to peroxy compounds in
a bleaching system. Accordingly, appellants’ argument of non-
enablement is not persuasive. See Genentech, Inc. v. Nova Nordisk
A/S, 108 F.3d 1361, 1365, 42 USPQ2d 1001, 1004 (Fed. Cir. 1997).
We agree with the examiner that “oxygen is oxygen,”
whether the oxygen supplied is “sourced from the air” or other
sources (Answer, page 4). Appellants have not established by
convincing evidence or technical reasoning that “molecular oxygen”
differs from other oxygen sources. As discussed above, we agree
with the examiner that the claimed bleaching method is not devoid
of peroxy bleach or peroxy-based or -generating bleach systems as
the term “substantially devoid” is defined in appellants’
specification. Additionally, since both references teach molecular
oxygen as an alternative to peroxy compounds in a bleaching system,
it would have been obvious for one of ordinary skill in this art to
formulate a bleaching system comprising a mixture of peroxy
compounds and molecular oxygen, which mixture is also within the
7
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007