Appeal No. 1998-1006
Application No. 08/499079
thermoplastic composition, especially in light of the
solvent-based systems of these references.
More specifically, in the present case, we reiterate
that appellants point out that the references of British
Celanese or Moss are directed to a solvent-based system,
and hence, the polyester material of these references
cannot tackify a hot melt thermoplastic composition since
the composition is in liquid form. (Brief, page 17). That
is, a liquid cannot be made tacky or sticky. Hence,
appellants in effect argue that the result of tackifying a
hot melt thermoplastic composition cannot in fact be
achieved by British Celanese or Moss because of the
solvent-based system.
As aforementioned, because the examiner has not
convincingly presented a case that addresses appellants’
position in this regard, by explaining why he believes
tackifying a hot melt thermoplastic composition can in fact
occur in British Celanese or Moss, based upon facts or
technical reasoning, we find that the examiner has not met
his burden for establishing a prima facie anticipation case
or for a prima facie obviousness case. Hence, we must
reverse the examiner’s rejection of claims 44-52 as
unpatentable under 35 U.S.C. § 102(b) as anticipated by, or
in the alternative under 35 U.S.C. § 103(a) for obviousness
over Moss or British Celanese.
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