Appeal No. 2004-1566
Application 09/452,982
We find that, when considered in light of the written description in the specification,
including the drawings, as interpreted by one of ordinary skill in this art, see, e.g., In re Morris,
127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319,
321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989), the plain language of the appealed claim 42, on
which all other appealed claims depend, specifies a middle distillate fuel composition comprising
at least the specified fuel oil and a copolymer comprising at least an olefin or mixture of olefins
and a compound selected from the group consisting of, inter alia, maleic acid and maleic
anhydride, wherein, after the preparation of the copolymer, it is derivatized with an amine
selected from the group consisting of, inter alia, n-octylamine and n-hexylamine.
The examiner’s determination of anticipation is based on the allegation that in Krull, “the
resulting copolymer is derivatied [sic, derivatized] with polyetheramines or primary or
secondary amines,” citing col. 5, lines 10-15, and col. 6, lines 27-30 (answer, page 3). The
examiner further alleges that “radical X” is “derived from a reaction of dicarboxylic anhydride
groups with primary amines and secondary amines (col. 4, lines 37-40),” that are “depicted by
formula ENR3R4 in col. 4, line 40, and are depicted by specific amines, clearly named in col. 4,
line [sic] 41-46,” that are n-hexylamine and n-octylamine, at col. 4, line 43, which “are the very
amines named in” claim 42 (answer, page 4; original emphasis deleted). Thus, the examiner
concludes that because Krull discloses the olefin monomer, maleic anhydride, and an “amine of
formula (I) is named as N-hexylamine or N-octylamine,” all of the limitations of claim 42 are
met (answer, page 4).
Appellants do not dispute that Krull discloses that copolymers are “first . . . formed and
then ‘reacted with a polyetheramine of the Formula H and/or an amine of the Formula I,” citing
col. 5, lines 10-15, and col. 6, lines 27-29, and that “an amine of Formula I is named as n-
hexylamine or n-octylamine,” but contend that Krull states “at column 4, lines 30-31, that one
radical R9 or R10 of the formula [I] must be Z-OH which means that Formula I can only be an
alkanolamine,” that is, “[i]t cannot be a simple alkyl primary amine as set forth in appellants’
claims; it must have an OH group” (brief, page 3). Appellant states that they “cannot explain
why [Krull] decided to list several primary alkylamines at lines 41-46 of column 4 of the . . .
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