Ex Parte Moreton

Board of Patent Appeals and Interferences

May 21, 2012

10549670 (B.P.A.I. May. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte STEPHEN MORETON
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Appeal 2011-002745
Application 10/549,670
Technology Center 1700
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Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
JEFFREY T. SMITH, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1 and 4-35. We have jurisdiction under 35 U.S.C.
§ 6.
We REVERSE.
Appellant claims an indicating desiccant, and a method of preparing
an indicating desiccant, for indicating humidity at a relative humidity below
20% by a color change wherein the desiccant is essentially copper-free or
Appeal 2011-002745
Application 10/549,670

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contains less than 0.002% by weight copper (independent claims 1, 23, and
29).
Representative claim 1 reads as follows:
1. An indicating desiccant for indicating humidity at a relative
humidity below 20% by a color change comprising a silica-based material
provided with, as the active indicator system, a source of iron and a source
of bromide, wherein the desiccant is essentially copper-free, or when copper
is present it is in an amount which is less than 0.002% by weight with
respect to the anhydrous silica-based material.

The Examiner rejects:
claims 1, 4-11, 19-29, 32, 34, and 35 under 35 U.S.C. § 102(b) as
anticipated by Moreton (WO 02/057772 A1, pub. July 25, 2002); and
all appealed claims under 35 U.S.C. § 103(a) as unpatentable over
Moreton.
We agree with Appellant that the Examiner's § 102 rejection is
improper (see, e.g., App. Br. 6-10).
It is undisputed that Moreton discloses an indicating desiccant
containing up to 0.5%, preferably 0.002 to 0.1%, copper (p. 2, ll. 22-28) for
indicating relative humidity in the 20 to 30% range (p. 3, ll. 12-15) whereas
the claimed desiccant is essentially copper-free or contains less than 0.002%
copper for indicating relative humidity below 20%.
The Examiner incorrectly finds that Moreton's broadly disclosed
copper range anticipates the narrower range claimed by Appellant (Ans. 4-
7). The genus copper range disclosed by Moreton does not describe the
species range claimed by Appellant with sufficient specificity to anticipate
this claim limitation particularly since the Moreton and claimed desiccants
are designed to operate at different relative humidities. See In re Autofina v.
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Application 10/549,670

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Great Lakes Chem. Corp., 441 F.3d 991, 999 (Fed. Cir. 2006); cf.
ClearValue, Inc. v. Pearl River Polymers, Inc., 668 F.3d 1340, 1345 (Fed.
Cir. 2012).
For these reasons, we cannot sustain the Examiner's § 102 rejection.
Appellant argues, inter alia, that the Examiner's § 103 rejection is
improper because the claimed invention shows unexpected results as
demonstrated in the Declaration of record by Stephen Moreton (see, e.g.,
App. Br. 12-13).
The Examiner's Answer contains no response at all to Appellant's
argument and evidence regarding unexpected results. It follows that the
Examiner has provided the record before us with no basis for considering
this argument and evidence to be unpersuasive.
For this reason alone, we cannot sustain the Examiner's § 103
rejection.
The decision of the Examiner is reversed.
REVERSED

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