Appeal 2007-0889
Application 09/935,668
chemistry. Also, it would appear that Dr. Kimura is employed by the
assignee of the present invention, namely, Fuji Xerox Co., Ltd.
Notwithstanding our assessment of the Kimura Declaration, we find
that the original Specification provides descriptive support for the second
polyester resin being non-crosslinked and linear and having a Tsp of not
lower than 80ºC and lower than 110ºC. As appreciated by the Examiner, all
five exemplified second polyester resins (2-1, 2-2, 2-3, 2-4, and 2-5),
whether they are second polyester resins of the present invention or second
polyester resins offered for comparison, are linear, non-crosslinked resins.
Also, the description in the Specification at page 11, lines 15 et. seq. only
describes crosslinking the first polyester resin. Accordingly, inasmuch as
the original Specification exemplifies only non-crosslinked, linear resins as
the second polyester resins, we are satisfied that the original Specification
would convey to one of ordinary skill in the art the concept that the second
polyester resin is a linear, non-crosslinked resin, in contrast to the
crosslinked, first polyester resin.
We will sustain the Examiner's § 112, first paragraph, rejection of
claims 19 and 22, which define the second polyester resin as having a
softening point Tsp of 110ºC. We agree with the Examiner that the original
Specification, as well as the amended, present Specification, clearly teaches
that the second polyester resin has a softening point Tsp of not lower than
80ºC and lower than 110º C. Appellants' Specification, in discussing the
second polyester resin, expressly discloses that "[w]hen the softening point
Tsp of the polyester resin is 110ºC or higher, low energy fixability is
lowered" (page 8, ll. 26-28). Manifestly, second, linear polyester resins
having a Tsp of 110ºC are outside the scope of Appellants' invention.
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