Appeal No. 96-1971
Application 07/914,388
U.S.C. § 103 as being unpatentable over Duffield in view of Jones and Carson.
OPINION
We have carefully considered all of the arguments advanced by appellants and the examiner
and agree with appellants that the aforementioned rejection is not well founded. Accordingly, we will
not sustain the rejection.
“[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” See In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). The examiner relies upon a combination of three references to
teach the claimed subject matter of appellant. Duffield is relied upon by the examiner for disclosing a
thermoforming process. As stated by the examiner, “Duffield differs from the claims by not showing the
specific formulations of the claims.” See Answer, page 4. However, our analysis of the claimed subject
matter is that the difference between Duffield and the process at issue is more fundamental than the
substitution of a different formulation. The claimed process requires that, “an effective amount of said
impact modifier is dissolved in said polyester.” Furthermore, there is a requirement that, “crystallization
of the polyester and impact modifier,” occur. One additional requirement present in the claimed subject
matter sets forth specific oxygen permeability properties acquired as a result of the claimed process.
None of these limitations are disclosed or suggested by either Jones or Carson.
We find that Jones teaches, “poly(ethylene terephthalate) having dispersed therein discrete
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