Appeal No. 2005-0960
Application No. 10/053,166
appropriate to emphasize that the rubber mixture defined by claim
1 is considerably broader in scope than the specific mixtures of
these tables. Therefore, no factual basis exists for the
contention urged by the appellant. On the other hand, a
determination that the rubbers of claim 1 and the applied
references possess overlapping hardness values is well supported
by the fact that common uses for these rubbers (e.g., for making
belts or seals) are expressly taught by the appellant (see lines
19-27 on specification page 8), Hert (see lines 25-53 in column
6) and Fujii (see lines 27-35 on page 10).
Additionally, the following argument is presented on page
5 of the brief:
According to the Final Office Action, Fujii . . .
teaches the use of liquid acrylates when peroxides are used
as crosslinking agents and Zn oxide is reserved for
compositions cured with sulfur. Therefore, according to the
Final Office Action, one skilled in the art would glean that
Hert[’s] teachings of peroxide with Zn oxide is not
effective in view of Fujii . . . .
This proposition of taking one teaching as effective
and another teaching as in-effective in order to provide
motivation and arrive at the instant invention is
counterintuitive and would not teach likelihood of success
of the present invention, nor would one be motivated to use
this backwards teaching to combine these references.
This argument is not convincing because it is based upon an
incorrect premise. Contrary to the appellant’s belief, there is
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