Appeal 2007-1905
Reissue Application 10/931,249
Patent 6,444,720 B1
1 content of a foam is taught by any of the cited references." Reply Br. 2. The
2 second is that "[t]he selective picking and choosing from the teachings of the
3 prior art upon which the Examiner's rejection is based does not … support a
4 proper rejection of … [the] claims under 35 U.S.C. § 103." Id.
5 Unanswered by Bayer's Appeal Brief and Reply Brief is how the
6 claims on appeal limit the invention to the contribution Bayer claims to have
7 been made. Assuming arguendo that the claims were limited to the Bayer
8 contribution, then further unanswered is why Heuvelsland and its assignee,
9 as well as other members of the public, should be precluded from making
10 rigid open-cell polyurethane foams using the polyols invented by
11 Heuvelsland. On this record, one skilled in the art should not be deprived
12 from using the Heuvelsland polyols to make polyurethane foams. There is
13 no "picking and choosing" involved in this case. The prior art explicitly
14 teaches the use of the Heuvelsland polyols to make polyurethane foams.
15 There is no reason why one skilled in the art should not be allowed to do so
16 even if there are many other polyols which also might be known for that
17 same purpose. The facts here are remarkably similar to those in Dillon.
18 Dillon found that use of a particular compound in combination with diesel
19 fuel resulted in less pollution when the diesel fuel was burned. However, it
20 turned out that it would have been obvious to use the same compound in
21 diesel to prevent water entrained in the diesel from freezing in valves when
22 diesel was transported via a pipe system in areas of the country having
23 freezing temperatures during winter months. There was no "teaching" in the
24 Dillon prior art concerning reduction of pollution on burning just as we can
25 assume that there may not be any teaching (in the prior art before us)
17
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