Appeal No. 2005-1662
Application No. 09/996,505
this cartridge already performs a phosphate ion absorbing
function.1
As for the examiner’s proposed substitution of SZC for the
HZO-Ac layer of REDY™, we fully share the appellant’s view that
an artisan would not have made this substitution because it would
result in loss of a number of functions performed by the REDY™
HZO-Ac layer such as fluoride and heavy metals absorption (i.e.,
the Polak reference contains no teaching or suggestion that SZC
absorbs either fluoride or heavy metals).
Finally, we perceive no convincing merit in the examiner’s
position that “the Polak ref [i.e., reference] teaches that HZO
is the state-of-the-art for phosphate absorption which would give
motivation to one of ordinary skill in the art to use SZC in
place of [the] HZO [in the REDY™ cartridge]” (answer, page 13).
While we appreciate that Polak describes HZC as state-of-the-art
(see the paragraph bridging columns 5 and 6), the patent contains
1The examiner has proffered no reason, and we can think of none
independently, for providing the REDY™ cartridge with two different
components, namely, SZC and HZO-Ac, for performing the same phosphate
ion absorbing function. To the contrary, since the REDY™ prior art
contains no teaching or suggestion that its HZO-Ac layer inadequately
performs this function, an artisan would have considered such a
provision to be needlessly redundant and therefore an unnecessary
expense.
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