Appeal No. 94-4259
Application 07/853,224
Claims 1, 3-10, 12, 14-17, and 24 stand rejected under 35 U.S.C.§ 103 as
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unpatentable over Campbell or Kartheiser in view of Hauser and Anderson.
After careful consideration of the arguments of appellants and the examiner
and of the record before us, we find ourselves in agreement with appellants. Accordingly,
on this record, we cannot sustain the examiner’s rejection.
Claim 1 is directed to a multilayer structure comprising two layers. The first
layer comprises a fire retardant polyolefin and the second a polyamide containing a certain
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phosphonate ester fire retardant.
Campbell discloses a multilayer structure comprising a olefin layer next to a
non-olefinic nylon layer with and without an adhesive between these layers (see Table 1,
Sample 2). The non-olefinic layer is said to be flame-retardant (column 3, lines 1-8). Both
Hauser and Anderson describe phosphonate esters as useful flame retardants for nylon.
2The examiner in his answer (page 6) referred to and relied upon the
Anderson reference, however, he failed to list it in the statement of the rejection. Where a
reference is relied on to support a rejection, whether or not in a minor capacity, there would
appear to be no excuse for not positively including the reference in the statement of the
rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
Appellants filed a reply brief responding to the examiner’s reliance upon Anderson.
Accordingly, we consider the statement of the rejection to include the Anderson reference.
3 Claim 8, which depends from claim 1, recites a mixture of fire retardants,
whereas claim 1 is limited to a single fire retardant. Appellants should correct claim 1 to
embrace mixtures of fire retardants.
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