Appeal 2006-1219
Application 10/636,148
copolymer, the process of the present invention is appreciably less effective
below about 4% to 6% divinylbenzene content in the copolymer than it is at
higher divinylbenzene levels” (col. 5, ll. 23-27). Thus, as argued by
Appellants, Meitzner appears to teach away from using levels of crosslinker
below 4% (Br. 6). Meitzner also states that “[w]ith this specific system,
preferred effects are obtained with a divinylbenzene content of from about
8% to about 25%, based on the weight of the monomer mixture” (col. 5, ll.
27-30). This suggests that an optimum value should be sought within that
range and not outside the range. Sebek, 465 F.2d at 907, 175 USPQ at 95.
Furthermore, the Examiner’s motivation to modify the level of
crosslinker in Meitzner is predicated on “achiev[ing] desired physical
properties of a polymer depending of [sic, on] its end use” (Answer 3). The
Examiner has pointed to no section of Meitzner that teaches or suggests an
end use where 0.5 mole percent to 2 mole percent of at least one crosslinker
would be desirable. For this reason and in light of Meitzner’s express
teaching that levels below the 4% crosslinker lower limit “are appreciably
less effective” (col. 5, l. 25), we must presume that the Examiner’s
aforenoted obviousness conclusion is based upon impermissible hindsight.
Based on the above, we are unpersuaded by the Examiner’s
contentions that it would have been obvious to a person with ordinary skill
in the art to modify the process of Meitzner by “lowering the amount of
crosslinking agent . . . disclosed by Meitzner to the amounts claimed by
applicants . . . to achieve desired physical properties of a polymer depending
of [sic, on] its end use” (Answer 3).
Claims 8 and 9 ultimately depend from independent claim 6 and,
therefore, stand or fall with claim 6.
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