Appeal 2007-4316
Application 09/911,268
formula (I) is evidence that regular users of such oligophosphates either do
not need to worry about the presence of IPP, or, if they do, they routinely
purify the oligophosphates before use. The Examiner has not, however,
directed our attention to any evidence in Eckel 930, Gaggar, or other prior
art of record, that the presence of IPP was recognized to be a problem. The
silence of a reference, particularly as to a substance that is apparently an
impurity arising in the synthesis of a component used in the reference, is
very weak evidence—to the extent that it is evidence at all—that the
impurity is absent. On the present record, Applicants have come forward
with sufficient evidence to outweigh the Examiner's weak support for
anticipation.
Castelnuovo does not address the IPP content of phosphate fire-
retardant compositions, so it cannot cure the defect of Eckel 930. Thus the
Examiner's case for obviousness also must fail.
Accordingly, we REVERSE the Examiner's rejections.
In the event of further prosecution, we invite the Examiner and
Applicants to consider the Table at column 13 of Eckel 930. The Table
appears to show that the polycarbonate compositions that contain
oligophosphate D.1, namely, composition 1 (comparative) and
compositions 4 and 5, have Vicat B heat deflection values and notch impact
strength ak comparable to values obtained by Applicants (see Table 2 in the
Specification at 30.) These data may suggest that IPP is present at a low
level, e.g., at less than 1 w%. On the other hand, Table 2 also shows that the
flame resistance (UL 94V 1.6 mm) is superior for Examples 4 and 5 and
inferior for comparative example 1. The Eckel 930 inventors attribute this
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