Appeal 2007-1396
Application 10/375,235
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.”
(quoting In re Gurley, 27 F.3d 551, 553 [31 USPQ2d 1130, 1131], (Fed. Cir.
1994)); In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1145-46 (Fed.
Cir. 2004) (prior art “disclosure does not criticize, discredit, or otherwise
discourage the solution claimed”).
In this respect, Appellants’ explanation of the mechanisms in the
pathway leading from the triglycerides in oily stains to activation of the
resulting hydroperoxide through the action of the lipase, lipoxidase, and
transition metal catalyst does not establish non-obviousness. Cf., e.g., In re
Woodruff, 919 F.2d 1575, 1577, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990);
W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1548, 220 USPQ 303,
309 (Fed. Cir. 1983) (“[I]t is . . . irrelevant that those using the invention
may not have appreciated the results[,] . . . [otherwise] it would be possible
to obtain a patent for an old and unchanged process. [Citations omitted.]”);
In re Skoner, 517 F.2d 947, 950, 186 USPQ 80, 83 (CCPA 1975). Indeed,
the action of lipases on the triglycerides in oily stains to form
polyunsaturated fatty acids was well known to one of ordinary skill in this
art; Baeck discloses lipoxidases oxidize polyunsaturated fatty acids to their
corresponding hydroperoxide; and Hermant and Perkins disclose activating
hydroperoxides with an “air mode” transition metal catalyst.
Appellants contend the evidence in Specification Examples 1 and 1a
and Examples 4 and 4a establishes the combination of catalyst,
lipoxygenase, and lipase exhibits a synergistic effect. On this record, we
agree with the Examiner that Appellants have not established that the results
reported are unexpected by one of ordinary skill in the art. Indeed,
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