Appeal No. 2006-0574
Application No. 09/878,405
inherently yield a composition with the required degree of cross-linking” (Brief, page
20).
Based upon the data provided by Varughese in Figure 1, appellants have
estimated the degree of crosslinking for each mixture reported by the reference that
does not contain additional crosslinking agents, and these estimates are well below the
claim limitation of at least 65% after 5 minutes of heating at 170°C. (Brief, pages 19-20;
Reply Brief, pages 7-10). The examiner states that these “estimations are of no
probative value” since there is no rationale as to how these values have been calculated
(Answer, page 6). There are no calculations or rationale in the Brief (pages 19-20) but
these are supplied for the first time in the Reply Brief (pages 7-10). Although we agree
with appellants’ estimations of the minimum and final torque values from Figure 1 of
Varughese, we fail to find any calculations supporting the estimation of the effective
torque, which may be “unambiguously determined” from the MDR curve by the method
disclosed on page 9, ll. 1-13, of the specification. Appellants have “estimated” the
effective torque by an entirely different procedure and have not explained any rationale
or acceptance in the art for this new procedure (Reply Brief, page 9). As the value of
the effective torque markedly affects the calculations in Equation 1 (specification, page
8), appellants’ estimated values for the effective degree of crosslinking in the
compositions of Varughese cannot be accepted as probative evidence of non-
obviousness.
Based on the totality of the record, including due consideration of appellants’
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