Appeal No. 2004-1590
Application No. 10/009,699
The examiner relies on the following references as evidence
of unpatentability:
Ogilvie 2,387,341 Oct. 23, 1945
Handrick et al. (Handrick) 3,979,448 Sep. 07, 1976
OPINION
I. The 35 U.S.C. § 103 rejection of claims 11 through 16 as
being unpatentable over Handrick
On page 5 of the brief, appellants argue that their claimed
process is carried out using a maximum weight of ratio of nitric
acid to substrate of about 37:1. Appellants calculate this
ratio by allowing for appellants’ minimum specified molar
quantity of the substrate having the lowest molecular weight
(which is the claimed 2-fluoro-6-nitrobenzyl alcohol having a
molecular weight of 171 g/mol), with appellants’ maximum
specified amount of nitric acid, which is 10 mol.
Appellants state that, to the contrary, Handrick teaches a
weight ratio of nitric acid to aromatic starting material of at
least 50:1, with a preference of even higher ratios of 100:1 to
200:1, and refers to column 3, lines 28 to 33 of Handrick.
Appellants also argue the differences between the
concentration of nitric acid that is used in Handrick versus that
required by the claim. For example, appellants state that
Handrick teaches a concentration of 2% to no more than 14%.
Appellants’ claim recites “nitric acid comprising between 35 and
90% by weight water”. Brief, page 5.
At the top of page 4 of the answer, the examiner asserts
that the nitric acid concentration and molar ratio of nitric acid
to aromatic compound of Handrick overlaps that claimed by
appellants, and refers to column 3, lines 52 through 56 of
-2-
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