Appeal No. 2005-1438
Application No. 10/027,433
The appellants do not dispute the examiner’s determination
that the claimed log kill rate for a bacterium, i.e., Klebsiella
pneumoniae, would naturally flow from following the suggestion
of the combined teachings of Deith and Oku.1 Compare the
Answer, page 4, with the Brief in its entirety.2 Rather,
the appellants appear to argue that Oku teaches away from
using its antibacterial and anti-fungal composition in the
sol-gel glazing process described in Deith. See the Brief,
page 5. In support of this argument, the appellants focus
on the examples in Oku, which are directed to a conventional
high temperature glazing method. Id.
1 Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Int.
1985), aff’d. mem., 759 F.2d 1017 (Fed. Cir. 1986) (holding that
the recognition of another advantage flowing naturally from
following the suggestion of the prior art cannot be the basis for
patentability when the difference would otherwise be obvious).
2 We also determine that using an optimum amount of the
antibacterial and anti-fungal composition to have at least the
minium bacterium log kill rate is well within the ambit of one of
ordinary skill in the art since the purpose of using the
antibacterial and anti-fungal composition is to kill a sufficient
number of bacteria to provide a sanitary condition. In other
words, the amount of the composition used or the bacterium log
kill rate are result effective variables. In re Boesch, 617 F.2d
272, 276, 205 USPQ 215, 219 (CCPA 1980)(“[D]iscovery of an
optimum value of a result effective variable in a known process
is ordinarily within the skill of the art”).
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