Appeal No. 2004-2028
Application No. 09/423,746
oxide, magnesium hydroxide and/or lignite coke to sodium bicarbonate
to form a powder mixture useful for removing, inter alia, hydrogen
chloride from burned or smoke waste gases, we concur with the
examiner that one of ordinary skill in the art would have been led
to employ the claimed amount of magnesium oxide, magnesium hydroxide
and/or lignite coke described in Regler in the powdery reactive
composition of the type recited in Fagiolini ‘835, motivated by a
reasonable expectation of obtaining “substantial advantage”. See
Merck & Co. v. Biocraft Laboratories Inc., 874 F.2d 804, 807, 10
USPQ2d 1843, 1846 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989);
In re Susi, 440 F.2d 442, 444, 169 USPQ 423,425 (CCPA 1971).
Contrary to the appellants’ arguments at pages 11-14 of the
Supplemental Brief, Regler allows one of ordinary skill in the art
to select the claimed lignite coke and/or magnesium compounds from
the very limited number of species disclosed therein (i.e, two of
the six specifically named basic alkaline compounds in Regler are
embraced by the claimed caking inhibitor or one of the five
specifically named surface active substances in Regler is included
by the claimed caking inhibitor). See page 4.
The appellants appear to argue that Regler requires employing
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