Appeal No. 2004-1900
Application No. 09/981,350
presumption of unpatentability arises against a claim
directed to a composition of matter, the adjacent
homologues of which is old in the art. The burden is
on the applicant to rebut that presumption by a showing
that the claimed compound possesses unobvious or
unexpected beneficial properties not actually possessed
by the prior art homologue.
In any event, we find that the expressions “peroxides” and
“organic peroxides” used in Yang and Yamauchi, as explained by
Kirk at column 6, lines 55-65, include a limited number of
conventional peroxide initiators, including tertiary-amyl
hydroperoxide (t-amyl hydroperoxide) encompassed by the claims on
appeal. Thus, we agree with the examiner that one of ordinary
skill in the art would have been led to employ organic peroxide
initiators, such as t-amyl hydroperoxide, with a reasonable
expectation of successfully forming the polymer taught or
suggested by Yang or Yamauchi.3
Having determined that the examiner has established a prima
facie case of obviousness, we look to any objective evidence
relied upon by the appellants. However, the appellants do not
refer to, much less rely on, any objective evidence which shows
that the claimed initiators impart unobvious or unexpected
3 Odian is cumulative with respect to the amount of
initiator used for the reasons indicated supra. Odian teaches
that the amount of initiator used is a result effective variable
as it is known to affect the resulting polymer.
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