Appeal 2006-1219
Application 10/636,148
The Examiner’s conclusion of obviousness is not supported by the
prior art and is based on a retrospective view of inherency that can not
substitute for some teaching or suggestion in the prior art which supports the
proposed modification of the prior art. See In re Newell, 891 F.2d 899, 901,
13 USPQ2d 1248, 1250(Fed. Cir. 1989).
For these reasons, we can not sustain the rejection of independent
claim 10 under 35 U.S.C. § 103(a) as being unpatentable over Meitzner.
We now address independent claim 6, which is directed to a method
of making Appellants’ polymeric bead and recites the step of “preparing a
suspension polymerization mixture in a vessel; said mixture comprising: (i)
a monomer mixture comprising at least one vinyl monomer and 0.5 mole
percent to 2 mole percent of at least one crosslinker; and (ii) from 0.25 mole
percent to 1.5 mole percent of at least one free radical initiator.”
Both the Appellants and the Examiner agree that Meitzner does not
teach the claimed amount of crosslinker (Br. 5; Answer 3.). However, the
Examiner contends
[Meitzner] expressly teaches in column 7, line 56
et seq. that it is well known in the art that degree of
crosslinking, which is governed by the amount of
crosslinker, "has a profound effect [o]n the
physical properties of the product." Indeed, it is
notoriously well known in the art that a wide
variety of physical properties of a polymer will
greatly depend [on the] degree of crosslinking
[id.].
Based on this, the Examiner concludes:
[L]owering the amount of crosslinking agent . . .
disclosed by Metzner to the amounts claimed by
applicants, would have been clearly obvious for an
ordinary artisan to achieve desired physical
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