Ex Parte Schilling et al - Page 3

                Appeal 2007-2906                                                                             
                Application 10/295,315                                                                       
                                               The rejection                                                 
                      The examiner has rejected all claims as having been obvious to those                   
                having ordinary skill in the art in view of the Takeyasu patent.6  In analyzing              
                obviousness, the scope and content of the prior art must be determined, the                  
                differences between the prior art and the claims ascertained, and the ordinary               
                level of skill in the art resolved.  Objective evidence of the circumstances                 
                surrounding the origin of the claimed subject matter (so-called secondary                    
                considerations) may also be relevant.  Such secondary considerations guard                   
                against the employment of impermissible hindsight.7                                          

                      Scope and content of the prior art                                                     
                      The Takeyasu patent is directed to methods of producing a foamed                       
                synthetic resin using a specific foaming agent.8  The invention is                           
                characterized by the use of HFC-245fa and HFC-134a in combination.9                          
                Takeyasu's weight percentage of HFC-134a and HFC-245fa is preferably 1-                      
                80 and 20-99, respectively, and more preferably 1-60 and 40-99,                              
                respectively.10  There is substantial overlap in the ranges claimed:                         
                                   in parts by               Takeyasu                                        
                                     weight     Claim 6   more preferred                                     
                                   HFC-134a       5-50         1-60                                          
                                   HFC-245fa 50-95             40-99                                         

                                                                                                            
                6 Hiromitsu Takeyasu et al., Method for producing foamed synthetic resin,                    
                U.S. Patent 6,043,291 (issued 28 March 2000) (Takeyasu).                                     
                7 Graham v. John Deere Co., 383 U.S. 1, 17, 36 (1966), cited with approval                   
                in KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 82 USPQ2d 1385 (2007).                       
                8 Takeyasu 1:4-7.                                                                            
                9 Takeyasu 2:24-25.                                                                          
                10 Takeyasu 2:41-42.                                                                         

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