Appeal 2007-1905
Reissue Application 10/931,249
Patent 6,444,720 B1
1 whether characterized as "motivation" or something else, strengthens the
2 Examiner's rationale for holding the claimed invention obvious. The
3 Examiner's reliance on the Heuvelsland properties is manifestly consistent
4 with KSR. A person skilled in the art would have recognized that one could
5 obtain polyurethane foams with the benefits which Heuvelsland said its
6 polyol would provide. We cannot imagine why one skilled in the art would
7 not have done so and why Bayer should be granted a patent to keep one
8 skilled in the art from doing so.
9 According to Bayer, the claimed invention achieves results which one
10 skilled in the art would not have expected—a greater percentage of open
11 cells. The Examiner was not impressed. The Examiner found that Bayer
12 has "not demonstrated results that are clearly and convincingly unexpected."
13 Examiner's Answer, page 7; see also Final Rejection, page 4.
14 Bayer's Appeal Brief, while relying on unexpected results, has not
15 been particularly helpful in explaining that part of the record which supports
16 its unexpected results argument.
17 A cursory review of the "evidence" appearing in the Examples will
18 immediately confirm that Bayer has failed to meet its clear and convincing
19 burden.
20 First, Okada describes open-cell polyurethane foam with no more
21 than 10 percent closed cells and in its examples describes several foams with
22 0 percent closed cells. In this sense, Bayer has not achieved a result not
23 otherwise achieved by the prior art. So, we ask: "Why are Bayer's results
24 unexpected?"
15
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