Appeal No. 2003-1912
Serial No. 09/436,440
difunctional oligomer would have been obvious, within the purview
of 35 U.S.C. § 103, from the mere recitation of a difunctional
“linking compound” in the claims of copending application ‘360.
There is no indication in any of the ‘360 claims that the linking
compound should be an oligomer. The mere fact that the term
“linking compound” broadly encompasses oligomers (as well as non-
oligomers) does not provide a sufficient basis for a finding of
obviousness. Accordingly, we are compelled to reverse the
obviousness-type double patenting rejection.
In a similar vein, the rejection under 35 U.S.C. § 103,
based on the Wardle reference, cannot be sustained because the
examiner has failed to provide sufficient evidentiary material or
a sound technical basis to support his conclusion that the use of
a difunctional oligomer would have been obvious from the mere
disclosure of simple diols in Wardle, or from the generic
disclosure that “there is no limit to the size of the linking
compound”. We find no teaching or suggestion in Wardle that the
linking compound be an oligomer.
In fact, Wardle (col. 9, ll. 13-17) appears to prefer that
the linking compound “be of relatively low molecular weight so as
to minimally influence the characteristics of the block polymer”.
In contrast, appellants appear to have chosen to use difunctional
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