Appeal 2007-1384
Application 10/122,683
cross-contamination. An artisan would have had a reasonable expectation of
success for each of these solutions. In the first solution, the successful result
would have been less than optimal but possibly longer lasting whereas, in
the second solution, the successful result would have been optimized but
possibly shorter in length (i.e., due to the possibility of eventual cross-
contamination).
In light of these considerations, it would have been obvious for an
artisan to try using different salts in the manner proposed in order to
optimize the electrolyte and humidifier functions based upon a reasonable
expectation of success.
Concerning this matter, Appellant states “Applicant surprisingly
discovered that such cross-contamination of the electrolyte and the
humidifying solution simply does not occur to any appreciable extent” (Br.
4). In response, we emphasize that, on this record, it is unknown whether
Appellant’s discovery was surprising on the basis of unfounded assumption
versus scientific study regarding the possibility of contamination. Moreover,
the Examiner has reasonably determined that cross-contamination in
Mayer’s apparatus would not have been expected because the electrolyte salt
and the humidifier salt are separately compartmentalized (Answer 9), and
Appellant does not argue otherwise in the record of this appeal. For these
reasons, Appellant’s “surprising discovery” cannot be regarded as an
unexpected result indicative of nonobviousness.
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