Appeal 2007-2774
Application 10/285,632
and content of the prior art, (2) any differences between the claimed
invention and the prior art, (3) the level of ordinary skill in the art, and (4)
relevant objective evidence of nonobviousness. KSR, 127 S.Ct. at 1734, 82
USPQ2d at 1389; Graham, 383 U.S. at 17-18. If the underlying factual
findings are not supported by evidence of record, the legal conclusion cannot
stand. Moreover, when evidence is submitted in rebuttal of a prima facie
conclusion of obviousness, the Examiner must consider all the evidence
anew, reassessing the patentability of the invention under the § 103 criteria.
In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
"The quantum of evidence required to establish unobviousness will depend
upon the strength of showing of obviousness made by the prior art." In re
Skoll, 523 F.2d 1392, 1398, 187 USPQ 481, 485 (CCPA 1975). The
evidence favoring unpatentability must be properly weighed against all the
countervailing evidence. Id., 523 F.2d at 1397-98, 187 USPQ at 484-485.
Claim 1 recites a process of treating a "dirty" water-based flush
solution containing from 5% to 20% by volume paint to form a filtered flush
solution sufficiently free of paint so that the filtered flush solution is directed
to spray application equipment. In other words, the process of claim 1 must
clean paint particles from the "dirty" flush solution sufficiently to prevent
the cleaned ("filtered") flush solution which is directed back to spray
application equipment from clogging the spray application equipment with
residual paint particles. Claim 45 expressly requires the cleaned/filtered
flush solution to be 59% to 95% as effective in removing paint from the
spray application equipment as fresh flush solution. Both Mahoney and
Mizuno teach that aqueous solutions of paint in flush solutions are "sticky"
(FFs 21 and 25). Therefore, the process of claim 1 must remove a sufficient
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