Appeal 2007-0889
Application 09/935,668
Appellants' claimed invention is directed to an imaging color toner
comprising a binder resin that is a mixture of first and second polyester
resins. The first polyester resin is a crosslinked polyester and the second
polyester resin is a non-crosslinked, linear polyester resin having a softening
point (Tsp) of not lower than 80ēC and lower than 110ēC. According to
Appellants' Specification, if the second polyester resin has a Tsp equal to or
greater than 110ēC, low energy fixability is lowered.
Appealed claims 1, 3-5, 7, 9-11, 13, 14, and 18-22 stand rejected
under 35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement.
We have thoroughly reviewed the respective positions advanced by
Appellants and the Examiner. In so doing, we concur with Appellants that
the subject matter of claims 1, 3-5, 7-11, 13, 14, 18, 20, and 21 finds
descriptive support in the original Specification. However, we agree with
the Examiner that the subject matter of claims 19 and 22 is not originally
described in the Specification. Accordingly, we will sustain the Examiner's
§ 112, first paragraph, rejection of claims 19 and 22, but reverse the
Examiner's rejection of claims 1, 3-5, 7-11, 13, 14, 18, 20, and 21.
The essence of the Examiner's § 112, first paragraph, rejection is that
Appellants' original Specification describes only a second non-linear
polyester resin having a Tsp of not lower than 80ēC and lower than 110ēC.
Therefore, the Examiner reasons that there is no original descriptive support
of the presently claimed second polyester resin that is a non-crosslinked
resin or linear resin. While the Examiner acknowledges that Appellants'
exemplified second polyester resins, Polyester 2-2 and Polyester 2-3, are
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