Appeal 2007-2234
Application 09/950,477
has increased stability over a wider pH range which broadens the scope of
practical uses" as taught by the incorporated Iler (id., 9).
E. Appellants' position
In essence, Appellants argue that Miranda, when considered in its
entirety, teaches away from use of latex-free compositions and that the
Examiner has misinterpreted Examples 1-4 in Miranda (Corrected Appeal
Brief, filed 21 September 2006, "Appeal Br.," 8-12; Reply Brief, filed 13
February 2007, "Reply Br.," 5-8). Appellants also point out that the latex-
free examples in Miranda contain an "unnamed silica sol" (Appeal Br., 11;
Reply Br., 8). Finally, Appellants rely on a previously submitted
Declaration by Bo Larsson ("Larsson Declaration," executed 15 October
2004) as evidence of unexpected results using the claimed invention (Appeal
Br., 9-10; Reply Br., 10).
F. Analysis
First, we agree that the Examiner has mischaracterized the disclosure
in Miranda. For example, the latex-free formulations in Examples 1-4 are
not "non-preferred embodiments" of Miranda's anti-skid composition
precisely because they do not contain any latex (Miranda 4:1 to 5:28;
14:4-8). Thus, formulations (1) and (2) of Example 1 represent
compositions of the prior art vis-à-vis formulation (3) which represents a
composition according to Miranda. Formulation (3) of Example 1, which
contained latex, showed higher antiskid properties than the other two
formulations because it had less of a slide angle loss through the winder.
The Examiner's interpretation of Example 3 in Miranda failed to
acknowledge that formulation C, which contained an alcohol additive,
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