Appeal 20072907
Application 10644791
representative of the closest prior art.44 As discussed above, Fujii explained
that metal oxides alone are insufficient as fire retardants (which is why Fujii
combines them with magnesium hydroxide). Yamaguchi, which
recommended the use of melamine cyanurate, also recommended adding
metal oxides. Finally, Saito recommended using molybdenum or tungsten
oxides with a melamine/isocyanuric acid composition. Fujii predicted the
failure of Sample B, while Sample C does not represent the closest
embodiment of either Yamaguchi or Saito.
Dr. Gallo's test falls well short of a comparison with the closest prior
art. Moreover, the results are not unexpected. They are consistent with the
teachings of Fujii, Yamaguchi, and Saito, all of whom would have counseled
combining the metal oxides with another retardant. The test does not
establish unexpected results. If anything, the results are consistent with the
teachings of the prior art to prefer blends of fire retardants, including blends
of metal oxides and melamine-related retardants.
ANALYSIS
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
44 Cf. Harris, 409 F.3d at 1344, 74 USPQ2d at 1955 (selection of
comparative example can severely affect the weight accorded to test).
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