Opty posted this some time ago..and I found it very useful..

While this case dealt with chemistry, I think it mirrors what the USPTO is trying to do with the 336. Perhaps there is sufficient case history to prevail on appeal if any negative final ruling. Would be interested in learing of similar cases to this one. Opty

http://bulk.resource.org/courts.gov/...

My related response..

Opty,

you wrote..

So what may matter is how CAFC or a district court might see it, as those expectation might influence the USPTO's hindsightedness? Thoughts / comments welcomed.

Certaintly agree with that line of reasoning..

To break it down into simpler terms (more for my benefit of talking outloud) we have individual ingredients to make a cake (sugar, flour, icing, etc.)..but lets says for the sake of argument the sugar and other individual ingredients are something like Splenda that has a unique formula (i.e. the unrelated prior art). We come up with the idea for the cake (prior to the advent of cookbooks or any other instructions on how to make a cake)..the USPTO should not be able to attack the cake idea because now we have many cookbooks or recipes on how to make cake (hind sightedness)..all different iterations that were derived from someone's original idea(s) on putting the individual ingredients together to make the cake..based on your cited materials, the cake idea should prevail..and the USPTO should honor the cake..and we should be "able to eat it to" as shareholders LOL

To expand upon this analogy, are we the first to invent cake of this sort or are we say the inventors of lemon cake..that is distinguishable from say chocolate cake? Once chocolate cake is invented, is lemon cake an obvious next step – not sure of the answer or if my analogy is a good one or not..just “food” for thought..JMHO