Appeal No. 2006-1383 Page 4
Application No. 10/025,065
272, 276, 205 USPQ 215, 219 (CCPA 1980) (citations omitted). Appellants,
however, are equally correct in that our reviewing court has found an exception
to this general rule where “the parameter optimized was not recognized to be a
result effective variable,” In re Antonie, 559 F.2d 618, 621, 195 USPQ 6, 8
(CCPA 1977).
Therefore, to resolve this issue, we must look to the function of Aristoflex
AVC serves in Löffler’s composition, and whether a person of ordinary skill in the
art would have recognized that Aristoflex AVC is a result effective variable from
the teachings of Löffler.
I. What purpose does Aristoflex AVC serve in Löffler’s composition?
The examiner does not identify, and we find no disclosure in Löffler
regarding the function of Aristoflex AVC in Löffler’s disclosed compositions. In
this regard, we note that Löffler’s only specific disclosure of Aristoflex AVC is in
examples 1-7. Therefore, we find ourselves in agreement with appellants (Brief,
page 4), “[n]o person reading Löffler would have any idea of what the Aristoflex
AVC does in his compositions. . . .”
II. Is Aristoflex AVC a results effective variable?
From the foregoing discussion it should be clear that there is no evidence
on this record that the prior art relied upon by the examiner recognized that
Aristoflex AVC has any particular effect on the compositions taught by Löffler,
which according to Löffler (column 1, lines 23-24) are “emulsions comprising an
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