Appeal No. 2006-2810 Page 11
Application No. 10/618,111
correctly observed that the skilled worker would have recognized that the chemical
reaction is atomically unbalanced – a principle learned in first year college chemistry –
and would have known how to correct it.
Appellant also challenged the examiner’s conclusions: 1) that it would have been
obvious to have substituted a structurally similar compound into Cook; and 2) that
because of the structural similarities, it would be expected to work. Answer, page 14;
Brief page 14,
We agree with the examiner that there is a sufficiently close structural
relationship between Cook’s compound and Smith’s LCT epoxy to reasonably expect
that it could be substituted with carboxylate-alumoxane and produce a functional
composite polymer. See In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990)
(en banc). We make this conclusion irrespective of the propriety of the examiner’s
“flowing” chemical diagrams. Brief, page 5, last line. Appellant eluded to a showing of
“no reasonable expectation of success of similar properties,” but other than conclusory
statements that mesogens would be expected to alter the properties of Cook’s epoxies,
we find no evidence of record to substantiate their position. Reply brief, page 2.
Appellant maintained that there would be no expectation that a liquid crystal
structure would result from the application of Cook’s method to Smith’s LCT epoxy
resin. Brief, page 6, lines 11-12. However, we do not see any evidence in the record
that would lead to this conclusion. To begin with, it is not clear to us that the claimed
subject matter actually requires that the material have a crystalline structure as
repeatedly argued in the Brief. See e.g., Brief, page 1, V. Notwithstanding, as already
pointed out, Smith expressly states that LCTs can be combined with other materials to
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