Appeal No. 2003-0413
Application 09/148,262
The appellant points out that Baumgartner does not mention
a release agent and argues, in reliance upon In re Robinson,
169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51 (Fed. Cir. 1999),
that there is no clear evidence that a release agent is absent
from Baumgartner’s article (brief, page 4). The evidence is
Baumgartner’s lack of a disclosure of a release agent. The
reference provides no reason to believe that the article
contains a release agent.1
Accordingly, we find that a prima facie case of anticipation
of the appellant’s claimed invention over Baumgartner has been
established and has not been effectively rebutted by the
appellant. We therefore affirm the rejection over Baumgartner.
New ground of rejection
Claim 15 is rejected under 35 U.S.C. § 103 as being
unpatentable over Baumgartner.
1 The appellant points out (brief, page 4) that it is
disclosed in 21 Kirk-Othmer Encyclopedia of Chemical Technology
213 (John Wiley & Sons, 4th 3d. 1997) that “[r]elease agents are
widely used in the rubber and plastic industry to achieve release
of polymers and release from polymers.” Regardless of whether
release agents were widely used in the plastic industry,
Baumgartner’s lack of a teaching that a release agent is present
in the plastic indicates that the relatively smooth surface of
Baumgartner’s article is obtained without a release agent being
present in the plastic.
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