Appeal No. 2006-0415
Application No. 10/267,200
1 October 31, 2003, page 3, lines 9-11) (see also Examiner’s Answer,
2 page 6, lines 4-6). The appellant has not contested this finding
3 in any meaningful way. Selection of one species from a genus is
4 not necessarily obvious. In re Baird, 16 F.3d 380, 29 USPQ2d
5 1550 (Fed. Cir. 1994)(millions of compounds); In re Jones, 958
6 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992)(same). However, in this
7 instance, when the genus is two exemplary types, one species of
8 which is isocyanate-free, the isocyanate-free species is only one
9 out of two and accordingly we conclude that it would have been
10 obvious to select the isocyanate-free species. See also In re
11 Petering, 301 F.2d 676, 682, 133 USPQ 275, 280 (CCPA 1962) (a
12 disclosure of a limited genus of 20 rendered every species within
13 that genus anticipated).
14 Even were we to conclude otherwise, we additionally observe
15 that the appellant’s position that the isocyanate-containing
16 option is “preferred” further ignores the knowledge of one skilled
17 in the two-part reactive adhesives art that isocyanates are a
18 potential health hazard and worker exposure is to be avoided.
19 See, e.g. Preventing Asthma and Death from Diisocyanate Exposure,
20 National Institute for Occupational Safety and Health, publication
21 No. 96-111 (1996) (Exhibit D). Isocyanates have been known to be
22 powerful irritants as early as 1955, cause asthma (1973) and death
23 (1988) (Id., page 4). The selection of the non-isocyanate
10
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