Appeal No. 2006-1792
Application 10/329,665
appellant’s arguments in the brief and reply brief. See generally, In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ
785, 788 (Fed. Cir. 1984).
We agree with the examiner’s findings of fact from the references and conclusions of law
based on this substantial evidence as set forth in the answer, to which we add the following for
emphasis.
The principal issue in this appeal is whether one of ordinary skill in this art would have
found in the combined teachings of the admitted prior art and the applied references the
motivation to interchange the powdered boric acid in the prior art curable ablative insulative
material acknowledged in specification Table 1 ([0021]) with zinc borate in the reasonable
expectation of obtaining a curable ablative insulative material which can be disposed as at least
one layer on at least one surface of a rocket motor structure and cured to form an insulative layer
on said surface as known for the acknowledged prior art curable ablative material.
Appellants submit that the admitted prior art does not identify boric acid as a flame
retardant and neither Whelan nor Russell suggest adding a flame retardant to the admitted prior
art composition (brief, page 9; reply brief, pages 4-5). In this respect, Appellants contend that
“[a]t most, the Admitted Art suggests the use of boric acid in a material composition used as an
insulative material with rocket components” and thus, “there is no disclosure that boric acid may
be substituted with another ‘flame retardant’ material” which supports the examiner’s position
(reply brief, pages 4-5). Appellants further submit that although the combined teachings of
Lyday, Brownell, Duryea, Nanaumi and Yasuma disclose that both zinc borate and boric acid
can be used as flame retardants, such disclosure would not have suggested “that a ‘flame
retardant’ must be used in an insulative material for rocket motor linings and rocket nozzles,”
and thus there is no suggestion or motivation to combine these references with the admitted prior
art, Whelan, Russell (reply brief, pages 5-8; brief, pages 10-14). In this respect, appellants point
out that “while Lyday teaches that zinc borate is widely used as a flame retardant in plastics,
Lyday does not provide examples of plastic compositions in which the zinc borate is used,” and
that Brownell, Duryea, Nanaumi and Yasuma teach the use of zinc borate as a flame retardant
but would not have suggested using the same in a composition similar to that claimed (brief,
pages 10-11). Appellants also argue that the nature of the problem solved by appellants is “to
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