Appeal No. 2004-0638
Application No. 10/038,975
probative value to outweigh the evidence presented by the
examiner.
Appellants submit that "[a]s pointed out in the Declaration
of record of Lawrence Candela, it is not consistent with good
research practice to employ feed stocks which contain significant
quantities of adulterants" (page 7 of Brief, second paragraph).
However, as properly noted by the examiner, the claims on appeal
are not limited to "research practice" but, rather, embrace
conventional industrial processes. Also, although appellants
maintain that only high purity material was available on the
commercial market over the last several decades, this is not
relevant to the dispositive issue on appeal, namely, whether the
claimed process was known in the prior art at the time of the
present invention. In our view, Kirk-Othmer is convincing
evidence that it was known in the art to perform the claimed
process for preparing 1,3-propanediol by utilizing an ethylene
oxide feed comprising more than 50 ppm acetaldehyde. Also,
declarant's statement that he is not aware of a commercial source
of ethylene oxide containing more than 50 ppm aldehyde is
irrelevant to the issue of whether the claimed ethylene oxide
feed was used at some time in the prior art.
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