Appeal No. 2006-2247
Reexamination Nos. 90/006,554 and 90/006,894
1 52. Dr. Boeckh states:
2 Moreover, compared to the process of the Witman patent,
3 which in any case is concerned with oxidizing monomers, not
4 polymers (such as PVP), our process in the ‘684 patent provides
5 superior oxidation results, as Witman specifies at most
6 (Example I) 85% oxidation for its monomeric compounds
7 (based on preparing a salt from the unisolated N-oxide).
8 However, this 85% degree of oxidation is achieved with high
9 excess of glacial acetic acid at low water content, which were
10 conditions known in the prior art that could be used to prepare
11 N-oxides at high yields, even without a catalyst (see above
12 discussion). For example, Example V of Witman (the only
13 example in the patent operated with a water content in excess of
14 25%), however, which was cited in the Official communication,
15 the reported yield is only 63% (again for a salt prepared from
16 the unisolated N-oxide). I also note that in Example V, Witman
17 uses a much higher percentage of catalyst than 0.1 to 1%
18 specified in claim 5 of our patent, yet he still was unable to
19 produce an oxidized product at high degree of oxidation. Given
20 Witman’s apparent lack of success in operating his process in
21 such an aqueous medium (which process was, in any event, not
22 directed to polymers as our process is), in my opinion it was
23 unexpected in 1993 that we would have been able to achieve the
24 superior oxidation results discussed above, including the ability
25 to obtain a high degrees [sic] of oxidation in an acid medium
26 containing a catalyst, while still advantageously reducing the
27 amount of acid in the medium by replacing it with water (of at
28 least 25%). [Boeckh Declaration, ¶13; italics added.]
29
30 53. Dr. Boeckh alleges that Exhibit 3, which is attached to the
31 Declaration, demonstrates that the inventors “were able to achieve
32 much higher degrees of oxidation than any degree of oxidation shown
33 in the Witman patent for its monomeric oxidation process.” (Boeckh
34 Declaration, ¶¶14-15.)
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