Appeal 2006-2774
Application 10/309,493
Moreover, we find Appellant’s argument inconsistent with his own
Specification. On page 6 of the Specification, it is stated that “[t]he present
invention is a latex based, high solid content, thin film fire protection”
(Spec. 6: [0017]) – suggesting that the claimed “binders” of element (e) were
properly characterized as “latex polymers” by the Examiner.
With respect to the Examiner’s calculation on page 4 of the Answer as
to the amounts of water present in Erismann, we are of the opinion that an
error was made, but not the error stated by Appellant (Reply Br. 3). A
composition comprising 45 wt% of latex having 30-75 wt% of polymer
(discussed by the Examiner on page 4 of the Answer) – assuming that the
other component is water – would contain 25 wt% to 70% wt% water.
Based on these values, the total amount of water would be about 11 gm in
100 gm total weight (0.45 x 0.25 = 0.1125 or about 11/100) to 31.50 gm in
100 gm total weight (0.45 x 0.70 = 0.315 or 31.50/100) which falls within
the claimed range of 10 to 35 weight percent. Thus, although the Examiner
erred in the calculation, the amounts of water disclosed by Erismann still
meet the claimed limitation. Because of our reasoning differs from the
Examiner, we designate this as a new ground of rejection under 37 C.F.R. §
41.50(b).
Although we find that the Examiner established that the prior art
suggested a composition with all components recited in claim 1, we do not
agree with the Examiner (Answer 6-7) that such composition “is capable of
being applied to a surface with the ease of a conventional paint” as recited in
claim 1. Erismann quite clearly describes an intumescent calking
composition that is used to fill voids (see, e.g., Erismann, at [0014], [0016]).
Nonetheless, for different reasons, we shall affirm this rejection.
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