Appeal 2007-3396
Application 1 11008,592
gel may be added for some applications. Horn further teaches that it is
"expedient" to mix the silica gel with the polyol component to improve the
processing properties and stability of the polyol component. Expediency is
not necessity. Horn does not teach that the process would not work if the
zeolite were not added to the polyol con~ponent or if it were added to the
polyisocyanate component instead. While Bayer is correct that Horn does
not teach adding zeolites to the polyisocyanate component, Horn does
suggest it by noting the expediency of the alternative and by noting that the
prior art adds zeolites to both components. Horn by no means teaches away
from adding zeolites to the polyisocyanate component.42
Skowronski is not directed to integral-skin foams and does not teach
the use of zeolites.
As Bayer notes, Eisen does not teach the use of zeolites.43
The ordinary level of skill in the art
We look to the evidence of record-the applicant's disclosure, the
cited references, and any declaration testimony-in resolving the ordinary
level of skill in the art. We focus on what those of skill in the art know and
can do.44 Bayer has not provided testimony on the level of skill
The specification exhibits relatively little confidence in the knowledge
of those in the art since it gives fairly precise directions on what ingredients
42 In re Fulton, 39 1 F.3d 1 195, 1200, 73 USPQ2d 1 141, 1 145 (Fed. Cir.
2004) (preferred alternatives do not teach away); In re Irlland Steel Co.,
265 F.3d 1354, 1361,60 USPQ2d 1396, 1402 (Fed. Cir. 2001) (lack of an
advantage is not a teaching away).
43 Br. 8.
44 Exparte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded
panel).
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