Appeal 2007-2521
Reexamination 90/007,130
1 obtained through an amidation reaction at 150-170°C of a
2 mixture of hydrogenated castor oil fatty acid with C6-C12
3 straight chain saturated fatty acid . . . under addition of an
4 equivalent amount of ethylenediamine or 1,4-
5 diaminobutane . . .
6 Yasuda, p. 5, l. 14-18. Yasuda describes a small genus of diamides that
7 includes species within the scope of Patentees Claim 1. Thus, Yasuda
8 teaches rheological additives including the reaction product of (a) ethylene
9 diamine, (b) hexanoic, heptanoic or octanoic acid (C6, C7 and C8 straight
10 chain fatty acid), and (c) 12-hydroxystearic acid (hydrogenated castor oil)
11 made by mixing those components and heating. Those rheological additives
12 meet every limitation of Patentee’s Claim 1. Yasuda anticipates the subject
13 matter of Claim 1. Perricone., 432 F.3d at 1367, 77 USPQ2d at 1325.
14 Patentees argue that the products obtained by Yasuda’s technique are
15 different than those claimed. In particular, they argue that there is a
16 difference in the amount of unreacted acid and amine in the product. Appeal
17 Brief, p. 7. To support their argument, Patentees present a declaration from
18 each of the two named inventors, Mahalingam Santhanam and Wilbur S.
19 Mardis. Appeal Brief, p. 7. The Inventors testify that they compared the
20 products said to have been made according to the example on page 9 of
21 Yasuda with products obtained according to Patentee’s invention using the
22 same reactants. Santhaman Declaration, p. 2, ¶ 5; Mardis Declaration, p. 2,
23 ¶ 7. In that example, in addition to the amine and the acids, 60 grams of
24 xylene are included in the mixture. Patentees’ comparisons were said to
25 have been done “neat,” i.e, without xylene. Santhaman Declaration, p. 2,
26 ¶ 5; Mardis Declaration, p. 2-3, ¶ 7. Both Declarants testify that their
27 technique resulted in a product having significantly less unreacted amine and
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