Appeal No. 1997-1863 Page 5
Application No. 08/408,087
reactants of Pedain have not even been established as being
within the scope of the reactants utilized by appellant in
forming the claimed prepolymer component. In the absence of
such factual evidence or convincing scientific rationale on
the part of the examiner, we find that the examiner has failed
to meet the initial burden of establishing the prima facie
anticipation of the claimed invention.
Moreover, we note that the examiner has taken the
position that:
"... if the polyester of Pedain et al. does not have
the instantly claimed crystallinity or a value close
to that of the instant claims, there is no rationale
for modifying the polyester of Pedain et al. to
possess the instantly claimed crystallinity"
(answer, page 8).
Hence, the examiner has also failed to establish a
factual basis to support a legal conclusion that the claimed
invention would have been obvious within the meaning of 35
U.S.C. § 103 to one of ordinary skill in the art.
Consequently, on this record, we will not sustain the
examiner*s stated § 102 and § 103 rejections of the appealed
claims based on the disclosure of Pedain.
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