Appeal 2007-1254
Application 10/352,542
salt in the deflagrating composition.3 Contrary to Appellants’ arguments
(Br. 6-8 and 10), we determine that Pawlak clearly teaches the equivalence
of ammonium and alkali metal salts for the carboxylic acid derivative
component, including esters such as benzoates (see factual findings (2) and
(3) listed above). Accordingly, we determine that one of ordinary skill in
this art, following the teachings of Pawlak, would have been led to the
sodium m-nitrobenzoate salt as required by claims 30 or 32 on appeal. The
denomination of the sodium nitrobenzoate salt as an “ignition aid” in claim
30 on appeal instead of a “fuel” as taught by Pawlak does not differentiate
the claimed composition from that known in the prior art since these terms
only refer to the intended use. (See Pearson, supra; Answer 6).
For the foregoing reasons and those stated in the Answer, we
AFFIRM the rejection of claims 30, 32-36, 40, 45, 82, 84-86, 89-94, and
106-108 under § 103(a) over Pawlak.
The decision of the Examiner is affirmed.
3 Appellants state that claims 32 and 45 should be considered in this appeal
but only present a specific argument for the separate patentability of claim
45 (Br. 4 and 10). With regard to this argument, we determine that the
amount of nitrobenzoate salt recited in claim 45 overlaps with or varies by
such a small amount (12% vs. 14 parts by weight) over Pawlak that one of
ordinary skill in the art would have expected similar results and properties.
See Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 781,
227 USPQ 773, 779 (Fed. Cir. 1985).
6
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