Appeal No. 2007-3827
Application 08/713,905
reaction conditions, provide little, if any, guidance. See, e.g., Wertheim, 541
F.2d at 262-65, 191 USPQ at 96-98.
We cannot agree with Appellants’ position that the phrase “in pure
form” in this passage is tantamount to “chemical purity” per se and thus,
synonymous with “hydrolyzable chlorine content” when considered in the
context of the disclosure in the Specification as a whole. Indeed, there is no
disclosure of “hydrolyzable chlorine content” with respect to the claimed
process other than in the illustrative examples, and there is no disclosure in
these examples correlating “percent purity (CG)” with “hydrolyzable
chlorine content” in “ppm.” We note that a “purity” of “99.8%” is listed for
two different ether diisocyanates which exhibit a hydrolyzable chlorine
content of 48 ppm and 24 ppm, respectively, even though the products are
prepared by the same process. Thus, on this record, while hydrolyzable
chlorine content may be attributed to an impurity, it is apparently not the
only impurity present in the product.
Therefore, in the absence of disclosure in the Specification which
describes “hydrolyzable chlorine content” within the claimed range across
the breath of the ether (poly)isocyanate products obtained from any ether
(poly)amine reactant using at least any specified vapor phase reaction
condition within the specified temperature range, one skilled in this art
would not consider Appellants to have been in possession of the claimed
method encompassed by appealed claim 1 at the time the application was
filed.
Wertheim, 541 F.2d at 263-64, 191 USPQ at 97.
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