Appeal 2007-1366
Application 90/005,090
1 Patentee’s specific method of making TRIS follows Quaal’s teachings
2 and recites process specifics which are within the level of skill in the art and
3 provide only the expected results. The substitution of Quaal’s known
4 method for making TRIS for the method expressly described by Gaylord
5 would have been obvious.
6 Secondary considerations
7 Neefe Declaration
8 Patentee relies on the Neefe declaration asserting secondary
9 considerations of unexpected results, commercial success, long felt need and
10 copying of the invention by others. Reply Brief in Response to Supplemental
11 Examiner’s Answer, p. 3.
12 The Neefe declaration has been carefully considered. However, it is
13 insufficient to prove secondary considerations of non-obviousness.
14 Patentee argues that the contact lens materials which result from the
15 claimed process have unexpectedly high oxygen permeability as compared
16 to the materials described by Gaylord. Reply Brief in Response to
17 Supplemental Examiner’s Answer filed September 9, 2005, p. 3, p. 20.
18 Patentee asserts that the declaration establishes unexpected results in that the
19 “Claim 1 method provided contact lens polymer materials that were as much
20 as 30 times more oxygen permeable than were commercial products
21 manufactured according to the teachings of Gaylord.” Reply Brief in
22 response to Supplemental Examiner’s Answer filed September 9, 2005,
23 p. 20. Specifically, Patentee relies on ¶ 9 of the Neefe declaration.
24 Paragraph 9 relies on an Exhibit 3, said to be attached to the declaration, to
25 show a comparison between the Gaylord materials and those made with the
26 process of the invention. However, no document identifiable as Exhibit 3 is
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Last modified: September 9, 2013