Appeal 2007-0291
Application 09/976,412
we determine that the teachings of the applied prior art do not lead one of
ordinary skill in this art in a path divergent from the path taken by
Appellants.
Appellants argue that Dean uses a titanium catalyst to prepare
polyesters, and thus does not teach or suggest polyesters substantially free of
inorganic ionic additives, while titanium is “explicitly excluded from the
presently claimed polyester” (Br. 20). Accordingly, we must first construe
the claimed phrase “substantially free of inorganic ionic additives” (see
claim 5 on appeal). Appellants’ only disclosure regarding this phrase states
that “substantially free” is equivalent to “very low levels” of inorganic
additives, preferably forming a “bright” or “clear” polyester (Specification
14:9-16). Accordingly, we construe the phrase “substantially free of
inorganic ionic additives” as including very low levels of inorganic ionic
additives that do not impart the traditional brilliant white character normally
associated with polyester. Dean discloses that his polyesters are “clear and
non-opaque,” that copolyesters formed with “lower levels” of titanium
catalyst materials have better stability in the melt, and exemplifies catalyst
amounts of 25 parts per million (ppm) (col. 3, ll. 13-21; col. 7, ll. 2-4; and
Example 1 in col. 13; see factual finding (6) listed above). Therefore, we
determine that the polyesters taught by Dean are included within the scope
of the claimed polyesters that are “substantially free of inorganic ionic
additives.”
For the foregoing reasons and those stated in the Answer, we
determine that the Examiner has established a prima facie case of
obviousness in view of the reference evidence, which prima facie case
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