Appeal No. 95-0246
Application 07/990,262
on the Gee affidavit, filed under the provisions of 37 CFR
§ 1.132, executed June 21, 1993.
In light of the new record, we have taken a step back and
re-evaluated the patentability of appellants' claimed subject
matter over the cited prior art. On reflection, we agree with
appellants that the rejections under 35 U.S.C. § 103 are not
sustainable. We agree with the position and reasons succinctly
stated in appellants' Appeal Brief, and we add the following
comments for emphasis only.
Neither the Findlay reference alone, nor Findlay in
combination with Hyde, is sufficient to support a conclusion of
obviousness of claims 1 through 13, 21 and 23, requiring pre-
emulsification and sequential addition "wherein the rate of
addition of the precursor emulsion is effective to form a clear,
stable microemulsion." Accordingly, neither Findlay alone, nor
Findlay considered in combination with Hyde, establishes a prima
facie case of obviousness of the appealed claims.
Even assuming arguendo that the examiner had established a
prima facie case of obviousness, the objective evidence of non-
obviousness relied on by appellants is sufficient to rebut any
such prima facie case. Note particularly the Gee affidavit,
executed June 21, 1993, showing the criticality of sequentially
adding precursor emulsion to the polymerization medium. Also
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