Appeal No. 2006-2546 Page 7
Application No. 10/425,177
Snow describes “a physiologically tolerable water-soluble light imaging contrast
agent compound having a molecular weight in the range 500 to 500000 and containing
at least two chromophores having delocalized electron systems as well as at least one
polyalkylene oxide moiety having a molecular weight in the range of 60 to 100000.”
Col. 2, lines 2-7. In addition, Snow describes a physiologically tolerable contrast agent
comprising at least one chromophoric group attached to a surfactant molecule; e.g., a
surfactant molecule comprising Pluronic® block copolymers. Col. 9, line 13, to col. 10,
line 11. Snow also states that the contrast agent compounds can include linking groups
such as polyvinylpyrrolidones, polyvinyl alcohols, and polyethylene glycols. Col. 44,
lines 57-65; col. 46, lines 8-45. Furthermore, Snow describes solutions, such as
aqueous solutions, containing these compounds. Col. 54, lines 1-19.
The examiner has not pointed to any disclosure indicating that compositions
described in Snow would undergo the gel transition recited in the claims. Instead, the
examiner argued that this property is inherent in the compositions described in Snow.
“‘Inherency, however, may not be established by probabilities or possibilities. The mere
fact that a certain thing may result from a given set of circumstances is not sufficient.’”
In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981) (quoting Hansgirg
v. Kemmer, 102 F.2d 212, 214, 40 USPQ 665, 667 (CCPA 1939), emphasis in original).
To support the inherency position, the examiner relied on the fact that Appellants
are claiming compositions containing categories of polymers, such as polyvinyl
alcohols, polyvinylpyrrolidones, and polyethylene glycols, that are also described in
Snow. However, the fact that the claimed compositions contain certain types of
polymers does not provide a reasonable basis to conclude that all compositions
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