Appeal No. 2006-1273
Application No. 10/420,400
phase can thus be drawn off from below.” (Col. 1, line 65-col. 2, line 3.) The “working-
up procedure [without the addition of alcohol] has proven to be more costly in so far as a
second processing vessel is required.” (König et al., col. 2, lines 13-14.)
König et al. further teach that the alcohol should be present in amounts of 50
wt.% to 200 wt.% with respect to the weight of the aqueous phase (see, e.g., König et
al.’s claim 2). This equates to a weight ratio of aqueous reaction solution to alcohol from
2:1 to 1:2. The alcohols expressly disclosed are substantially the same as those disclosed
in the pending applications (compare König et al., col. 1, lines 53-58 with the ‘400
Application, page 7, line 22 to page 8, line 5).
In Example 2, König et al. use a molar ratio of phenol to phosphonium halide of
10:1, resulting in a liquid product, i.e., a “phenolic solution” containing “37%
tetraphenylphosphonium phenolate” in phenol. The yield for this example by P-NMR is
100% of theoretical (col. 5, lines 5-22).
Additionally, König et al. disclose the use of a liquid product in their “Application
examples” in which a 3% solution of tetraphosphonium phenolate in phenol is added to
catalyze the transesterification of bisphenol A and diphenyl carbonate (col. 5, lines 32-
34).
The Rejection
In her final Office Action, the Examiner maintained her rejection of claims 1-5
under 35 U.S.C. § 103(a) based on König et al. She noted that the presently claimed
molar ratio of phenol to phosphonium halide, 11.1 to 15, is not in König et al. However,
this difference did not convince her to withdraw her rejection, “since it is well within the
purview of one of ordinary skill in the art to optimize conditions to optimize a reaction
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