Appeal No. 2007-3827
Application 08/713,905
matter of the declaration. In the absence of such a correlation,
the position is taken that the evidence of obviousness outweighs
the evidence of nonobviousness.
Id. 5.
Appellants contend Joulak and Bischof do not teach that gas
phosgenation can be used to produce ether isocyanate (Br. 5; Reply Br. 3).
Appellants contend Biskup teaches preparing ether aromatic isocyanates
from ether group containing aromatic amines using the disclosed gas
phosgenation process “but does not teach that the isocyanate produced by
that process would retain such ether group” and one skilled in the art would
not expect the ether group to be retained under the condition of gas phase
phosgenation as pointed out in the Stutz Declaration (Br. 5). Appellants
contend the Examiner has improperly disregarded the Stutz Declaration,
pointing out
Appellants have not argued that the teachings of [Biskup] with
respect to the presence of ether groups in the amine starting
materials should be dismissed. However, it can not be properly
assumed that the ether groups present in the starting material
will be present in the product of a gas phase phosgenation.
Id. 6 (original emphasis omitted).
In this respect, Appellants contend their position is supported by the
cited sections of Annalen der Chemie in the Declaration “which teach that
even though an ether group is present in the amine starting material, the
phosgenation product does not contain the corresponding isocyanate in
significant, recoverable amounts” (Br. 6; original emphasis omitted). In
other words, Appellants contend the cited sections “are directed to the
known problem encountered with phosgenation of ether amines, i.e.,
replacement of the oxygen with chlorine to such an extent that high yields of
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