Appeal 2006-0990
Application 10/209,369
We reverse for the reasons well stated in the Brief and Reply Brief.
We offer the following for emphasis.
OPINION
The Anticipation Rejection
The Examiner rejects the claims on the basis that both Warzelhan
references describe a copolyester polyether, each reference having the
claimed components of the polymer in amounts encompassed by or
overlapping the claimed amounts (Answer 3-5). Appellant acknowledges
that the claimed concentration ranges of the various components overlap
substantially with the ranges described in the Warzelhan references (Br. 7
and 9). As identified by both the Examiner and the Appellant, the key
question here is whether either Warzelhan reference describes what is
claimed with “sufficient specificity to constitute an anticipation under the
statute.” (Answer 6; Br. 4). See Atofina v. Great Lakes Chem. Corp., 441
F.3d 991, 1000, 78 USPQ2d 1417, 1424 (Fed. Cir. 2006).
We have reviewed both references and we agree with Appellant that
the Examiner has not established that either reference contains a description
of copolyetherester specific enough to anticipate the copolyetherester of the
claims. With regard to the relevant components of the copolyetherester,
both references have essentially the same disclosure. We will discuss the
issues with reference to Warzelhan ‘045. Appellant provided a table for
comparison purposes on page 7 of the Brief. We provide a similar table
below including the most detailed description of concentrations within
Warzelhan ‘045. The table below identifies the difference in concentrations
between the polymer components of the claims and those of Warzelhan as
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