Appeal No. 1999-1390
Application No. 08/655,783
Moreover, Endmann does not describe the exact nature of the
mixing elements, which would normally impact shear rate.
As to the examiner's argument that one of ordinary skill in
the art would have optimized the shear rates in the mixers, we
point out that there is no evidence to indicate that
optimization of shear rates in the mixers for the purposes
described in Endmann would necessarily result in the ranges of
shear rates recited in the appealed claims.
For these reasons, we reverse the examiner’s rejection
under 35 U.S.C. § 103 of appealed claims 1, 2, and 4 as
unpatentable over Endmann.
On return of this application, the examiner should analyze
whether any or all of the appealed claims should be rejected as
unpatentable under the judicially created doctrine of
obviousness-type double patenting over claims 1 through 4 of
U.S. Patent 5,739,252. Patented claim 1 recites:
1. A process for the production of thermoplastic
polyurethaneurea elastomer comprising
(a) introducing and homogeneously mixing (A),
(B) and optionally (C) in a first static mixer at a
shear rate of 500 to 50,000 s-1 and at a temperature of
50º to 250ºC., to form a substantially unreacted
mixture and
(b) reacting said substantially unreacted
mixture in a second static mixer operating as a shear
rate of 1 to 100 s-1 and a temperature of 50º to
250ºC., to form thermoplastic polyurethaneurea
elastomer, wherein (A) denotes one or more
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