Appeal No. 2006-2662
Application No. 09/928,764
purity diisocyanates, having 98% 4,4’-MDI, meet appellants’ claimed high
isomer content MDI, the position is taken that these evidentiary references
support the examiner’s position that the 4,4’-MDI reactant of Jakubowski et
al. inherently contains the claimed content of P,P’-isomer.” (Answer 4-5.)
Appellants argue that Jakubowski 027 “does not disclose use of a
MDI wherein the P,P’-isomer content of the MDI is between 90 to 99
percent.” (Br. 4.) In particular, Appellants argue that the “Examiner has
provided no basis upon which to conclude that 4,4’-MDI contains such
‘insignificant’ amounts of impurities to render a P,P’-isomer content of 99
percent. . . . Even if such ‘insignificant’ quantities were disclosed, an
‘insignificant’ quantity would imply trace amounts of impurities at ppm
levels. 1% is equal to 10,000 ppm and 10,000 ppm is not considered an
‘insignificant’ quantity.” (Br. 4-5.)
Appellants also argue that Jakubowski 027 “only discloses the
P,P’-isomer which the Examiner concedes is the high purity isomer. A high
purity isomer would have a P,P’-isomer content in excess of 99 percent.”
(Br. 5.) In support of this position, Appellants refer to Friedel (cols. 1 and 2
and col. 4, ll. 11-33) and Fischer (p. 3, ll. 72-83). Appellants state that, in
Friedel, “it is reported that the 4,4’-isomer which is ‘considerably higher
than 99%’ is obtained by crystallization, distillation and displacement
washing.” (Br. 5.)
In addition, Appellants argue that, in the Examples of Jakubowski 027,
“the P,P’ isomer content of the MDI component is at best no greater than
76 percent. . . . Note that the isocyanate of Jakubowski is derived from a
50:50 mixture of 4, 4’-diisocyanatodiphenylmethane and 2, 4’-diisocyanato-
4
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