Appeal 2007-2359
Application 90/006,951
limited to a narrow range of Si content that excludes Reiso alloys 6 and 16."
(Reply Br. at 3.) In particular, Alcan argues that EP/WO require a
Si-content of 0.60% or greater and that there is no teaching regarding
inventive alloys having less than 0.40 % Mg. (Id. at 2.) Moreover,
according to Alcan, it is in the context of a teaching that excess Si stabilizes
the β-AlFeSi phase that has a detrimental effect on extrudability and
extrusion surface quality. (Id. at 3, citing EP at 3:18–21.) Alcan finds that
the high-Si-content is further emphasized by the preference alloys containing
at least 0.3% excess Si. (Id.; EP at 3:27–29; FF 61.)
All the direct teachings of adding Mn to aluminum alloys in the prior
art of record relate to high Si- and high Mg-content alloys. In this context, it
is appropriate to consider Timsit's statement that "[a]dditions of Mn and
excess Si may yield superior extrudability of the brazed components."
(Timsit at 3:38–39.) This statement is not limited to any particular class of
aluminum alloy. Nevertheless, we consider its face value in weighing the
evidence as a whole. Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d
1313, 1355, 65 USPQ2d 1385, 1416 (Fed. Cir. 2003) (reh'g and reh'g en
banc denied) ("[W]e hold a presumption arises that both the claimed and
unclaimed disclosures in a prior art patent are enabled.") It is not clear
whether the origin of the caution is due to the diffusive mechanism proposed
by Timsit to introduce the Mn and excess Si to the bulk of the aluminum
alloy components being brazed, or to uncertainties as to which alloys will
show improvements in extrudability. In an art in which "other impurities"
are limited to "up to 0.05% each, 0.15% total" (EP at 2:20), it is not
plausible that the ordinary worker would consent to "using up" a significant
fraction for impurities by adding a potentially active ingredient without
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