Appeal 2007- 2552
Application 10/276,428
similarity to the linear alcohols, the usefulness of the primary alcohols with
low branching, i.e., methyl branching, would have been predictable. In the
absence of evidence to the contrary, there would have been a reasonable
expectation of success when using the branched alcohols of claim 4 and one
need merely to verify that expectation. See KSR Int’l Co. v. Teleflex Inc.,
127 S. Ct. 1727, 1732, 82 USPQ2d 1385, 1389 (“Granting patent protection
to advances that would occur in the ordinary course without real innovation
retards progress . . . .”); Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1367–
369, 82 USPQ2d 1321, 1135-336 (Fed. Cir. 2007) (simply because the
properties of a compound must be verified through testing does not mean
that the compound satisfies the test for patentability “since the expectation of
success need only be reasonable, not absolute”).”
Appellants further contend that Amalric does not disclose or suggest
the chain lengths of the branched alkyl glycoside of claims 6 and 7 (Br. 8
and 11). We disagree. These claims require chain lengths of 8-14 carbon
atoms and 8-12 carbon atoms respectively. Those chain lengths are within
the broad genus of 8-15 carbon atoms described by Amalric’s formula I (FF
5).
Appellants further contend that Amalric does not disclose or suggest a
personal care formulation comprising the microemulsion of claim 1 (Br, 8
and 11). But Amalric clearly describes formulating personal care
compositions from an emulsion of the same, or substantially similar,
composition to that claimed (FF 9).
Appellants further contend that Amalric does not disclose or suggest a
hard surface cleaner in accordance with claims 12-20 (Br. 8 and 11). We
select claim 12 to review this issue.
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