BPAI Board of Patent Appeals and Interferences Patent and Trademark Office (P.T.O.) *1 EX PARTE BOBBY J. BLAND Appeal No. 594-20

Board of Patent Appeals and Interferences

Patent and Trademark Office (P.T.O.)



Appeal No. 594-20

March 31, 1986



 Application filed September 22, 1982, Serial No. 421,125, for the Reissue of  Patent No. 4,199,606, granted April 22, 1980 based on application Serial No. 300,236, filed September 8, 1981, which is a Reissue of Serial No. 879,605, filed February 21, 1978, which is a Continuation-in-Part of Serial No. 835,663, filed September 22, 1977, now abandoned. Propionic Acid On A Carrier Material As a Preservative.



Robert E. Richards et al. for appellant



Primary Examiner--R. B. Penland



Before Milestone, Pellman and Steiner












 This is an appeal from the examiner's decision finally rejecting claims 1 through 27, all of the claims in the application.



 The subject matter on appeal relates to an anti-fungal particulate composition comprising an expanded form of vermiculite (verxite) or expanded perlite, upon which is absorbed [FN1] about .1 to about two parts by weight of propionic acid, the particle size of the verxite or expanded perlite being 150 to 2000 microns. The invention also includes compositions containing said particulate anti-fungal composition in conjunction with an agricultural crop product that is used as an animal foodstuff, as well as the method of inhibiting fungal growth by admixing an animal foodstuff with said particulate composition. Thus, the present invention is concerned with compositions containing propionic acid absorbed either on verxite (claims 1 through 5, 11, 21, 25 and 26) or on expanded perlite (claims 6 through 10, 12 and 22). Likewise, the invention encompasses the method of inhibiting fungal growth by admixing a foodstuff with propionic acid absorbed either on verxite (claims 13 through 17, 23 and 27) or on expanded perlite (claims 18, 19, 20 and 24). In order to describe the invention in greater detail, claims 1 and 23 are reproduced as follows:

   1. A dry, free-flowing particulate composition which is non-toxic to animals that consume it and is useful as a preservative for [a product] an animal foodstuff consisting essentially of a raw or processed agricultural crop product which is subject to microbiological degradation, which is low in sugars and high in one or more of cellulose, starch or lignin, and which product contains moisture, said particulate composition comprising verxite in particulate form having absorbed thereon from about 0.1 to about 2.0 parts by weight of propionic acid in the liquid form per part by weight of said verxite, and wherein the particle size of said verxite is within the range of from 150 to 2000 microns.

   23. A method of inhibiting fungus growth in [a product] an animal foodstuff consisting essentially of a raw or processed agricultural crop product which is subject to microbiological degradation, which is low in sugars and high in one or more of cellulose, starch or lignin, and which contains moisture, said method comprising intimately admixing with said product a fungus-inhibiting amount of a dry, free-flowing particulate composition which is non-toxic to animals that consume it, said composition comprising verxite in particulate form having absorbed thereon from at least about 0.1 part[s] by weight of propionic acid in the liquid form per part by weight of said verxite to an amount of propionic acid such that said verxite is not soggy, sticky or wet to the touch and said particulate composition is dry and free-flowing; the particle size of said verxite begin within the range of from about 150 to 2000 microns, and wherein there is admixed with said product an amount of said particulate composition which will provide from about 0.25 to 2.5 grams of propionic acid per kilogram of said product.



  *2 For evidence of obviousness, the references listed below are cited by the examiner:




Mueller et al. (Mueller)                 3,812,269   May 21, 1974

Renner (United Kingdom)                  1,002,977  Sept. 2, 1965

Matyas et al. (Matyas) (United Kingdom)  1,346,152   Feb. 6, 1974


   W. R. Grace and Co., (Grace I), Brochure G-231-R, Zonolite Brand Vermiculites 'Properties and Uses,' Cambridge, MA (1964)

   W. R. Grace and Co., (Grace II), Brochure G-272, Zonolite Brand Verxite Granules, Chicago, IL (1965)

   Eastman Products, Publication No. ZFD-43A, Propionic Acid as a Preservative in Formula Feeds, Kingsport, TN (1980)



 Initially, at page 20 of the principal brief, appellant points out that the Eastman Products brochure bears a publication date of March, 1980 and is therefore not prior art. Appellant also submits that said brochure does not disclose any information not available in the present specification and in the art of record in the corresponding Bland patent.



 We agree with appellant that the examiner's reliance upon the Eastman Products brochure is in error. Compare In re Glaberson, 45 CCPA 854, 253 F.2d 430, 117 USPQ 217 (1958). However, since appellant acknowledges that the same information is provided in the present specification, we shall not remand the application to the examiner, but decide the appeal on the basis of the remaining references, taken with appellant's acknowledgment of the state of the art.



 By way of background information, we note that this application is for the reissue of U.S. Patent No. 4,199,606 which issued on April 22, 1980 from application Serial No. 879,605 filed February 21, 1978. The application is a continuation of reissue application Serial No. 300,236 filed September 8, 1981 and now abandoned.



 The patent for which reissue is sought has been the subject of two civil actions in the United States District Court For The Northern District of Georgia, (1) Anitox Corporation et al. v. New South Manufacturing Company et al., Civil Action No. C80-886A, and (2) Anitox Corporation et al. v. H. Wilson Manufacturing Co., Inc., Civil Action No. C80-52G. Civil Action No. C886A terminated with judgments dated February 18, 1981 and April 22, 1981 (Exhibits 1 and 2 attached to Paper No. 3 filed November 23, 1981 in Serial No. 300,236), and Civil Action No. C80-52G terminated with dismissal dated December 12, 1983 (Paper No. 18 filed December 12, 1983 in this application).



 H. Wilson Manufacturing Co., Inc. filed a protest in the parent reissue application, Serial No. 300,236 (Paper No. 2 filed December 7, 1981) and a Brief In Support of Protest (Paper No. 9 filed April 15, 1982). Issues of patentability under 35 USC 103 and 112 as well as issues of inequitable conduct by or on behalf of applicant were raised by the protestor.



  *3 Examination of the application with regard to the conduct issues was delayed pursuant to 37 CFR 1.56(e) until the application was otherwise prepared for consideration by the Board of Patent Appeals and Interferences; that is, until after appellant's reply brief of May 29, 1984 in response to the examiner's answer of May 4, 1984, was filed. The appeal was suspended for examination pursuant to 37 CFR 1.56(d) with regard to the inequitable conduct issues.



 Although the examiner has fragmented his position into four separate rejections, it appears that only two rejections are actually involved. Thus, claims 1 through 5, 11, 13 through 17, 21, 23, 25, 26 and 27 stand rejected for being unpatentable (35 USC 103) over Grace I in view of Grace II, Mueller and the acknowledged state of the art. Additionally, claims 6 through 10, 12, 18, 19, 20, 22 and 24 stand rejected for being unpatentable (35 USC 103) over Renner in view of Matyas, Mueller and the acknowledged state of the art.



 With respect to the first rejection, beginning at page 4 of the answer, the examiner indicates that it would have been prima facie obvious, as meant by 35 USC 103, to employ:

   'as the high void volume expanded vermiculite carrier of Grace I having the claimed particle size the FDA approved animal feed verxite carrier of Grace II using as the fungicide of Grace I the well known liquid propionic agricultural fungicide of Mueller et al . . . in the claimed amount to provide a dry free flowing composition having a high weight percent of the active chemical thereby enhancing its effective duration.'



 Contrariwise, beginning at page 25 of the principal brief, appellant submits that the examiner erred in rejecting the claims of the present application. In particular, beginning at page 28 of the principal brief, appellant discusses the disclosure of each reference and concludes that neither Grace I nor Grace II relates to the use of verxite as a carrier for any type of food additive fungicide. Furthermore, at page 32 of the same brief, we are told that Mueller teaches that the particle size of the carrier for his fungicide must be less than that presently claimed, for example, 12 millimicrons. Consequently, appellant asserts that one of ordinary skill in the art would not have selected vermiculite #4 (425 to 1180 microns) [FN2] or #5 (149 to 590 microns) [FN3] as the carrier for propionic acid when it is to be used as a preservative for animal feed.



 After carefully studying the cited references, as well as the opposing arguments of appellant and of the examiner, we have no doubt that the prior art of record would have established a strong inference of obviousness as to the claims before us.



 The Mueller patent is concerned with the same type of composition as is appellant. That is, the patentee contemplates a food preservative for use in animal feeds consisting of a pourable pulverulent mixture of two to three parts of propionic acid on a finely dispersed carrier, such as precipitated silicic acid or calcium or aluminum silicate. The reference composition differs from that of appellant in employing as the carrier, a particular type of silica, instead of verxite or expanded perlite. Nevertheless, the combined teachings of Grace I and Grace II leave no doubt that a person of ordinary skill in the subject art would have viewed the substitution of verxite for silica in the Mueller composition as prima facie obvious.



  *4 Grace II includes an excerpt from the Federal Register stating that the food additive verxite may be safely used in animal feed. The additive is identified as a magnesium-aluminum-iron silicate containing a minimum of 98 percent of hydrobiotite. Verxite is suggested as a nonnutritive carrier for the incorporation of nutrients in feeds for poultry, swine, dogs, or ruminants, in any amount not to exceed that necessary to accomplish its intended effect and in no case to exceed 1.5 percent of the dog food or 5 percent of the final feed for other animals. At page 5, last paragraph, of the brochure, the manufacturer discloses that verxite contains a void volume to surface area relationship that imparts superior nutrient carrier properties in contrast to those of conventional millfeeds, for example. In the table preceding this paragraph, the average bulk density and particle size of verxite granules #4 are compared with those of various carriers, including ground corncob fractions. In the comment accompanying the table, the manufacturer states, '[i]t is obvious that none of the above listed conventional grain or leguminous carriers possess the superior nutrient carrier capacities of the lighter weight Zonolite Brand Verxite Granules.'



 On page 6 of the noted brochure, under item number 4, Grace teaches that finer sizes of verxite may be prepared, 'but as the mesh sizes are reduced with increasing number of finer particles, the absorptive capacities diminish due to an everincreasing number of fines accompanied with proportionately decreasing water-retention characteristics.' Since high liquid absorption characteristics and conversion of liquids into free-flowing granular products are among the general properties listed on page 7 of the brochure, it is apparent that the size of the particle is related to its effectiveness as a carrier for liquid materials. When the foregoing is considered with the further disclosure at page 10 of Grace I that verxite is a carrier for such agricultural products as fungicides and fumigants, the routineer in the subject art would have employed verxite, instead of silica, as the carrier in the Mueller composition, in the reasonable expectation of obtaining an outstanding anti-fungal composition.



 A discussion of appellant's evidence of nonobviousness would now seem to be in order. However, for convenience and clarity, our evaluation of such evidence and the criticisms thereof by the special program examiner will be deferred until after our discussion of the examiner's second rejection.



 Claims 6 through 10, 12, 18, 19, 20, 22 and 24, reciting the use of expanded perlite as the carrier, stand rejected for being unpatentable over Renner in view of Matyas and Mueller. As stated at page 12 of his answer, the examiner considers that it would have been prima facie obvious, as meant by 35 USC 103, to employ as the fungicide of Renner, the propionic acid of Matyas or Mueller.



  *5 Appellant's response to the examiner's rejection begins on page 41 of the principal brief. At page 42 of said brief, appellant vigorously disagrees with the examiner's characterization of the Renner patent disclosure. Specifically, appellant contends that the examiner's mention of dichloropropionic acid as a fungicide is incorrect. Rather, appellant argues that said acid is not a fungicide, but a toxic herbicide.



 Although we do not subscribe to the examiner's unfounded statement that dichloropropionic acid is a fungicide, we do agree with his conclusion that the present claims are unpatentable over the combination of cited references.



 Dichloropropionic acid is described in the Merck Index (Windholz, Editor, The Merck Index, Merck & Co., Rahway, NJ, pages 2795 and 2796 (1983)) as dalapon. The acid is said to have an oral LD50 in rats of 970 mg/kg. The only use for the sodium salt is as a herbicide. Accordingly, to the extent that the examiner interprets the Renner disclosure of dichloropropionic acid with vermiculite in a manner contrary to the teachings of the Merck Index, his position cannot be sustained.



 On the other hand, Matyas discloses a composition containing propionic acid and a suitable adsorbent, such as perlite (page 1, lines 27 and 28). The bacteriostatic and fungistatic effect of propionic acid in this form for application to corn fodder and other agricultural products is discussed at page 2, lines 56 through 76. Specific compositions of propionic acid with Aerosil 200 are shown at page 3, lines 7 through 31, items b, c and f. Additionally, at claim 3 of the reference patent, a composition containing 50 to 95 percent by weight of propionic acid is claimed wherein the acid is adsorbed on one of an oxide, activated charcoal, perlite, plastic powders, bentonite or peat. Compare In re Schaumann, 572 F.2d 312, 197 USPQ 5 (CCPA 1978). Although the adsorbent of the claimed composition exhibits a particle size below 10 microns, as opposed to 150 to 2000 microns, and while no mention is made of the perlite being expanded, as opposed to the specific recitation in the present claims, we are convinced that the reference teaching would have established a prima facie case of obviousness as to the invention of these claims. Since expanded perlite would have been expected to provide a larger surface area than the untreated mineral, the use of the former instead of the latter would have been an obvious expedient to a routineer in this field. Also, compare Renner.



 Similarly, while the reference limits the adsorbent to a particle size below 10 microns, the intent of the patentee is the same as that of appellant in the present case. Consequently, it would have been obvious to conduct routine tests to determine the optimum particle size to obtain the greatest effect of the propionic acid relative to its anti-fungal activity. A person versed in this field would realize that the patentee had not exhaustively investigated the use of each of the adsorbents disclosed and claimed in the patent, but had extrapolated from the results actually obtained with material such as silica. Nevertheless, since, as previously noted with respect to verxite, the absorptive capacity of the material diminishes due to an ever increasing number of fines as the size of the particle is reduced, it would have been apparent that the size of the particle is a result effective variable and appropriate tests must be conducted to optimize this parameter of the composition. Also compare Renner, page 4, beginning at line 86. See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980), as to the obviousness of optimizing a result effective variable.



  *6 We realize we have not given the same emphasis as the examiner to each of the cited references. Nevertheless, our treatment of the cited references does not involve a new ground of rejection because we have not changed the thrust of the examiner's position. Compare In re Kronig, 539 F.2d 1300, 190 USPQ 425 (CCPA 1976) and In re Cook, 54 CCPA 1079, 372 F.2d 563, 152 USPQ 615 (1967). In the latter case, see footnote 4.



 We note that at page 27 of the principal brief appellant raises the question of nonanalogous art with respect to the Renner patent. We have carefully considered appellant's contentions but find that the standard we employed is consistent with that set forth by the court in decisions such as Union Carbide Corporation v. Amercian Can Company, 724 F.2d 1567, 220 USPQ 584 (Fed. Cir. 1984) and In re Mlot-Fijalkowski, 676 F.2d 666, 213 USPQ 713 (CCPA 1982). Since all of the references are concerned with adsorbing biologically active materials on carriers, we have no doubt that the teachings in each of the various references would have been pertinent to the problems in the other references and to the invention at hand.



 We emphasize that the cited references establish a prima facie case of obviousness, which may be overcome by the presentation of persuasive contrary evidence of nonobviousness. Consequently, we now turn to the comparative tests to which appellant refers at page 35 of his principal brief.



 In the declaration of Dr. Donald G. Ahearn, petitioner's exhibit number 26, declarant finds that, 'the inhibitory activity of propionic acid which is not linked to a carrier is unexpectedly lost more rapidly than with the acid/hydrobiotite system.' Since the efficacy of employing a carrier for propionic acid is taught by Mueller, declarant's conclusion adds little to the evidence of record. Additionally, Dr. Ahearn declares that, '[t]he particles size of the hydrobiotite carrier unexpectedly appears important to the effectiveness of the system at preventing or inhibiting mold growth. However, additional testing will be required before definite conclusions can be drawn.' Since the carriers employed in the declaration are verxite, fine verxite, perlite and fine perlite, this would seem to be the basis for declarant's conclusion. However, the size of the fine verxite and fine perlite, although smaller than verxite and perlite, are stated to be within the range of 150 to 2000 microns. Thus, said range is within or overlaps the ranges recited in appellant's claims; it is therefore evident that the data provided in this declaration are not probative of the present claims' nonobviousness.



 In Dr. Ahearn's second declaration, petitioner's exhibit number 27, fine verxite having a particle size of approximately 10 to 25 microns is prepared. This carrier, containing propionic acid, is added to chicken feed and compared with corresponding amounts of appellant's commercial composition (Mono Prop), in an equivalent amount of chicken feed. The Mono Prop is observed microscopically and determined to have a particle size of about 250 to 1500 microns. In the results, after seven days, the Mono Prop/feed samples are reported as decreasing in the concentration of molds by a factor of 10 while the fine verxite/feed samples are found to increase in mold concentration by a factor of about 10 to about 100. Dr. Ahearn's conclusion on the basis of this experiment is that the particle size of the verxite carrier is significant in the effective retardation of mold development in moist chicken feed.



  *7 Accepting appellant's findings as being correct, we believe that they are consistent with the caveat at page 6 of Grace II warning that the finer particles, which would be expected to be generated by grinding verxite in a mortar and pestle, have absorptive capacities which diminish in relation to the increasing number of fines. Moreover, the results are not applicable to those claims reciting the use of expanded perlite. Finally, since Renner employs #4 expanded vermiculite as a carrier for biologically active agents, it may be concluded that a person of ordinary skill in the subject art would have employed #4 vermiculite to obtain its known properties (as disclosed in the brochures of record) and to avoid the problems associated with fines.



 The declaration of Dr. John A. Doerr, petitioner's exhibit 38, is now considered. This declaration compares compositions of propionic acid with verxite of various particle sizes. B represents a size of 39 to 149 microns, C 150 to 600 microns, D 601 to 1180 microns, E 1181 to 2360 microns and F appellant's commercial composition, Mono Prop. The performance of the several compositions is compared with respect to the percent concentration of carbon dioxide. The data show that treatments D and E are the most effective. In some tests, treatment C, employing particles of 150 to 600 microns, also shows some degree of efficacy. Nevertheless, for the reasons discussed above, the showing as to particle size is inadequate to overcome the prima facie case of obviousness. Although the larger size particles appear to be more effective than the smaller, none of appellant's claims are limited to the size shown in treatments D and E. Furthermore, the tests do not establish any unexpected difference in results between a treatment wherein the verxite exhibits a particle size of 150 microns (within the range of most of appellant's claims), with verxite below 150 microns (outside of appellant's claimed range). Rather, the declaration merely indicates that the use of verxite having a particle size near or above the maximum size recited in appellant's claims will achieve the greatest anti-fungal effect. Upon reevaluating the evidence of obviousness against the evidence of nonobviousness, we find that the evidence of obviousness prevails. [FN4] Accordingly, the examiner's rejection of the appealed claims under 35 USC 103 is affirmed.



 There still remains for consideration the new grounds of rejection set forth in the supplemental examiner's answer mailed May 17, 1985, as modified by the second supplemental examiner's answer, mailed January 8, 1986. Thus, the two grounds of rejection that are transmitted to us from the examiner, i.e., the special program examiner, are:

   '(1) the fraudulent misrepresentation that the verxite utilized in Example I, as well as all the other examples, 'was identified by W. R. Grace Co. as size number 4, . . . and had a particle size within the range of about 425 to 1180 microns' in the specification of Patent No. 4,199,606, the patent for which reissue is sought, at column 7, lines 53-57, repeated in a Rule 132 Affidavit by applicant Bobby J. Bland filed January 15, 1979 in the application for Patent No. 4,199,606 (Serial No. 05/879,605), and continued in the present reissue application;

    *8 '(2) the failure to disclose material information (experimental test data) showing that the amount of monomeric propionic acid vapor above a mixture of propionic acid and verxite is about the same as the amount of monomeric propionic acid vapor above a mixture of propionic acid and a precipitated silicic acid, test results conflicting with the test results set forth in Example X of applicant's Rule 132 Affidavit filed January 15, 1979 in application Serial No. 05/879/605, now the patent for which reissue is sought.'



 In response to the new grounds of rejection, appellant filed a reply identified as Paper No. 7. At pages 7 and 8 of said paper, appellant explains that the range of 425 to 1180 microns is taken from the W. R. Grace brochure and the information regarding a particle size range of 150 to 2000 microns, with the majority being in the range of 300 to 1500 microns, was developed by appellant using an electron microscope. Due to the different methods of analyzing the particle sizes, appellant contends, the differences between the two ranges is not inconsistent with one another.



 After giving careful consideration to the evidence and the arguments relating thereto, we find nothing sinister in the difference between the brochure range and that determined by appellant. The examiner has not established that appellant intentionally deceived the PTO or that he acted with such gross disregard for the truth that his negligence would have been tantamount to fraud. Furthermore, we are apprised of no information as to whether the noted discrepancy in ranges was material to the examiner's allowance of the claims. Consequently, based upon the record before us, including the cross examination testimony of appellant by counsel for H. Wilson Manufacturing Co., Inc., in Civil Action No. C80-52G, we shall not sustain the examiner's rejection based upon the alleged fraudulent misrepresentation of the verxite utilized in the examples of the patent.



 Turning now to the second new ground of rejection, we view this as relating to appellant's attempt to show that, whereas silicic acid allegedly exhibits a carrier effect with propionic acid, verxite is responsible for a catalytic phenomenon with propionic acid, resulting in the vaporization of the monomeric form. In particular, the examiner refers to examples X and XI of appellant's Rule 132 affidavit, submitted January 15, 1979. In example X, appellant compares the cumulative percent weight loss of propionic acid from a plastic bag containing propionic acid absorbed onto precipitated silicic acid (Bag No. 1) with the weight loss of said acid absorbed on verxite (Bag No. 2). The silicic acid is identified as that sold by Degussa Company and designated '22S.' The weight loss from Bag No. 2 is characterized as being much greater than that from Bag No. 1; for example, at day 14, Bag No. 1 shows a weight loss of 50% compared with 58% from Bag No. 2. However, in fact, it appears from appellant's testimony that the designation '22S' in the patent application should have been --22-- (pages 383 to 387 of the cross examination).



  *9 Beginning at page 6 of the supplemental examiner's answer (Paper No. 26), the examiner observes that appellant also performed tests involving 'Aerosil 200' and 'Supernot 22S.' Although appellant stated that the escape of gas through a plastic bag in which Supernot 22S with propionic acid is present is not much different from that containing propionic acid and verxite, the Office was not informed of these results. The examiner characterized this failure to disclose by the then applicant, Bobby J. Bland, as a clear violation of the duty of disclosure set forth in 37 CFR 1.56(a).



 In appellant's reply to the supplemental examiner's answer, at page 10, table II, the data for the 1977 and 1978 experiments are shown. Table II is reproduced as follows:






      The 1977 Experiment-    The 1978 Experiment-  

         % Weight Loss           % Weight Loss      

     ----------------------  ----------------------

Day   Verxite    Supernot 22  Verxite    Supernot 22

----  ---------  -----------  ---------  -----------


3        14%         11%                             

8        35%         29%         26%         22%     

14       58%         50%         40%         33%     

18       72%         62%                             

23       84%         73%                             


 It is apparent from the table that the results in the 1978 experiment are consistent with those in the 1977 experiment. Therefore, we fail to see how the disclosure of the later experiment would have had any effect on the examiner's conclusion with respect to the earlier experiment. We are aware that Dr. Bland admitted that '[i]n terms of escape of gas through a plastic bag, there is not much difference' between a propionic acid-verxite mixture and a propionic acid-Supernot 22S mixture. Nonetheless, appellant's admission does not convert his failure to disclose the second experiment into a fraudulent act. Fraud cannot consist of a failure to duplicate what is already in the file wrapper. Furthermore, to justify a finding of fraud, withheld information must be material to the determination of patentability, a condition that is clearly lacking in the present case. Compare Environmental Desions, Limited v. Union Oil Co. of California, 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983).



 There is an evident distinction between the facts surrounding the allegedly fraudulent acts in the present case with those in cases such as Monsanto Company v. Rohm & Haas Company, 312 F. Supp. 778, 164 USPQ 556, and 165 USPQ 683 (E.D. Pa. 1970), affirmed 456 F.2d 592, 172 USPQ 323 (3d Cir.), cert. denied, 407 US 934, 174 USPQ 129 (1972), cited at page 18 of the supplemental examiner's answer. Since the examiner has failed to show that the nondisclosed information was not merely duplicative of the evidence already of record and that knowledge of said information would have been germane to the examiner's determination of patentability, this rejection cannot be sustained.



  *10 Although we do not sustain the examiner's rejections based upon fraudulent misrepresentations, we do not dismiss appellant's conduct as having no bearing on the proceedings in the present case. In this connection, we invite attention to the discussion of the alleged catalytic effect of the verxite discussed in the testimony beginning at page 267. Also, appellant's mistakes in failing to designate the appropriate material tested and the mistakes included in his laboratory notebook detract from any authoritative effectiveness to which the tests otherwise might have been entitled. Finally, appellant's calculations that tend to inflate the difference between the results obtained with verxite (Mono Prop) vis a vis 22S further cast appellant's data in a poor light. See pages 389 to 393 of the testimony. These factors have an impact on the weight to which the evidence of nonobviousness is entitled.



 Consequently, on balance, since we are convinced that the claimed subject matter would have been prima facie obvious from the applied prior art and since we find that appellant's evidence of nonobviousness is insufficient to outweigh the evidence of obviousness represented by such art, the rejections of all the claims must be sustained. However, the rejections based upon the alleged fraudulent misrepresentations are reversed.



 For the reasons set forth in the answer and those discussed above, the examiner's decision rejecting claims 1 through 27 is affirmed.









Gordon K. Milestone






Irving R. Pellman






Arthur J. Steiner






FN1. Throughout our decision we shall use 'adsorb' and 'absorb' interchangeably.



FN2. Bland patent, column 7, line 57



FN3. Grace I and Handbook of Chemistry and Physics, The Chemical Rubber Publishing Co., Cleveland, Ohio, p. 3477 (1962)



FN4. The weight we accorded appellant's evidence of nonobviousness was affected by certain factors surrounding appellant's practices discussed subsequently in this opinion.

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