Appeal 2007-1905
Reissue Application 10/931,249
Patent 6,444,720 B1
1 Second, based on the data in the Examples, we immediately see that
2 Bayer Foam 3, made using a polyol within the scope of claim 1, has an
3 open-cell percent of 47. Apparently, the open cell language in claim 1
4 includes a foam with an open-cell content of 47%. It is somewhat hard to
5 divine how a rigid foam having an open-cell content of 47% is unexpected,
6 when Okada describes open-cell foams having 0 percent closed cells (or
7 100% open cells).
8 Third, Bayer invention Foams 1, 2 and 3 were made from a polyol
9 with a carbon-carbon double bond content of 7.2 mmole.kg-1. Accordingly,
10 we cannot assess the open-cell percentage of foams made from a polyol
11 having less than 15 mmole.kg-1 (claim 1), or for that matter one having no
12 more than 12 mmole.kg-1 (claim 6). Bayer has not shown that the claimed
13 subject matter, as a whole, achieves the results it says it gets through use of
14 the invention.
15 Fourth, the specification reveals that open-cell content is a function of
16 other variables, including, e.g., the stabilizer used. Col. 1:24-28. We do not
17 know what effect, if any, the use of Stabilizer 1 and Stabilizer 2 had on the
18 results reported in the Examples. The claims optionally provide for the use
19 of stabilizer. We cannot tell from the evidence what the open-cell content of
20 a polyurethane foam might be if Stabilizer 1 or Stabilizer 2 had not been
21 used to make the foam.
22 The Examiner is absolutely correct in finding that the "showing" in
23 the "Examples" is not commensurate in scope with the breadth of the claims.
24 We have not overlooked two arguments in the Reply Brief. The first
25 is that "[n]o relationship between polyol unsaturation level and open cell
16
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