Appeal No. 2004-1900
Application No. 09/981,350
free radical initiator in forming the emulsion polymer disclosed
in Yang and/or Yamauchi. On this record, we answer this question
in the affirmative.
We find that both Yang and Yamauchi teach employing the
claimed amount of peroxides or organic peroxides, inclusive of
those claimed, as free radical initiators. See Yang, column 6,
lines 18-40 and Yamauchi, column 12, lines 16-34. We find that
both Yang and Yamauchi also identify t-butyl hydroperoxide as one
of the peroxide or organic peroxide initiators (see Yang, column
6, line 31 and Yamauchi, column 12, line 25), with Yang actually
using the claimed amount of t-butyl hydroperoxide as one of the
initiators in its Examples 1, 3 and 5 (see Yang, columns 7, 8 and
9). Thus, we determine that one of ordinary skill in the art
would have been led to a structurally similar initiator, such as
an adjacent homolog of t-butyl hydroperoxide, encompassed by the
claims on appeal, with a reasonable expectation of successfully
forming the polymer taught or suggested by Yang or Yamauchi. As
held in In re Henze, 181 F.2d 196, 201, 85 USPQ 261, 265 (CCPA
1950) and as explained in In re Mills, 281 F.2d 218, 222-23, 126
USPQ 513, 516-17 (CCPA 1960):
[T]he nature of homologues and the close relationship
the physical and chemical properties of one member of a
series bears to adjacent member is such that a
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