Appeal 2007-3686
Application 10/965,349
802 (“As long as one of the monomers in the reaction is propylene, any other
monomer may be present, because the term ‘comprises’ permits the
inclusion of other steps, elements, or materials.”).
The dispositive question is, therefore, whether Lund would have
suggested to a person having ordinary skill in the art to employ the claimed
percentages of HFC 245fa and water within the meaning of 35 U.S.C. §
103(a)? On this record, we answer this question in the affirmative.
As correctly found by the Examiner at page 5 of the Answer, Lund
teaches at col. 5, ll. 25-28, that:
The density obtained is a function of how much of the blowing
agent, or blowing agent mixture, of the invention is present in
the A and/or B components, or that is added at the time the
foam is prepared.
As indicated supra, Lund also teaches employing water in the blowing agent
in an amount which embraces the claimed amount of water. The blowing
agent employed, according to Lund at col. 1, ll. 54-57, is useful for obtaining
lower thermal conductivity or k-factor.
Given the fact that the amounts of the blowing agent or blowing agent
mixture employed are known result effective variables, we concur with the
Examiner that the determination of the optimum or workable amounts of
water and HFC 245fa is well within the ambit of one of ordinary skill in the
art. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (when the
difference between the claimed invention and the prior art is some variable
within the claims, the applicant must show that the particular variable is
critical.); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[D]iscovery of an
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