Appeal 2007-2985
Application 010/669,978
1 metal or an amine with a pkB of less that 4.5. This line of argument is highly
2 peculiar in this case because Tsao does not say that its aqueous solutions
3 have an alkali metal, an alkaline earth metal or an amine with a pkB of less
4 that 4.5. So it is not clear to us why Haas insists that the Examiner had to
5 prove that Tsao "inherently" would not have an alkali metal, an alkaline
6 earth metal or an amine with a pkB of less that 4.5.
7 Another argument which appears throughout the prosecution is that
8 "commercial" hydrogen peroxide solutions have high amounts of alkali
9 metal ions and/or amines. But, the claims are not limited to "commercial"
10 hydrogen peroxide solutions. Nor do the claims require that the hydrogen
11 peroxide be made by the anthraquinone process. Haas bottoms the
12 "commercial" and "made by anthraquinone process" argument on limitations
13 which do not appear in the claims. Hence, we find these arguments to be
14 entitled to little, if any, weight.
15 In the Examiner's Answer, the Examiner found (for the first time
16 during the prosecution) that certain compounds were present in the Tsao
17 compositions in amounts called for by the claims. Examiner's Answer 4.
18 Haas in the Reply Brief presents some calculations hoping to establish that
19 the Examiner is wrong. There was no Supplemental Examiner's Answer so
20 we were basically left with no views from the Examiner on the Haas
21 calculations. However, given our rationale for affirmance, which differs
22 from the rationale used by the Examiner to reject, we need not consider
23 whether the Haas calculations answer the Examiner's findings. The portion
24 of Tsao upon which we rely does not describe the presence of alkali metals
25 or alkaline earth metals.
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