Appeal No. 2004-0027 Page 10
Application No. 09/513,089
OTHER ISSUES
By way of Reply Brief, Appellants bring to our attention a Canadian patent application
CA 2,247,657. This document was published September 17, 1998, more than one year before
the U.S. filing date of the present application, i.e., February 25, 2000. The Canadian document
is, thus, available as prior art under 35 U.S.C. § 102(b).
Upon further prosecution, the Examiner should consider rejecting claims 5 and 6 under
35 U.S.C. § 103(a) as being unpatentable over the Canadian document in combination with prior
art describing the specifics of flame-lamination.
The Canadian document describes a process for producing a hydrophilic polyester-
polyurethane foam which appears to meet all the requirements of the foam of claim 5 (p. 4, l. 14
to p. 5, l. 9). We are cognizant of the fact that claim 5 requires that the ethoxylated polyether
polyol have a molecular weight greater than 700 and that the Canadian document does not
disclose the molecular weight of the ethoxylated polyether polyol described therein. The
Examiner should, therefore, determine whether there is reason to conclude that the ethoxylated
polyether polyol described by the Canadian document inherently has a molecular weight within
the required range. We call to the Examiner’s attention Example 1 of the Canadian document
which describes a hydrophilic polyester-polyurethane foam having all the same ingredients as
Example 1 of the specification. The polyether polyol is VP PU 41WB01 in both cases. If it is
reasonable to conclude that VP PU 41WB01 inherently has a molecular weight within the
claimed range, then the burden shifts to Appellants to prove that there is, in fact, a difference.
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