Appeal No. 95-3630
Application No. 08/001,993
We find absolutely no support for the examiner’s assertion
that calcium carbonate, as disclosed in Brennan, can be
considered a “pearlescent pigment”, one of the compositional
components required by the instant claims. As noted by
appellant, the instant specification (page 6, lines 19-26)
defines what is meant by a pearlescent pigment, albeit giving
just one specific example of a commercially available embodiment
of such pigment identified only by trademark. Apparently,
though, such pigments are well known in the art and have well-
defined characteristics as explained in appellant’s
specification. Moreover, appellant’s brief makes note of U.S.
Patent No. 3,819,566 (Pinsky et al) which is of record and which
provides additional confirmation of the fact that pearlescent
pigments are indeed well known in the art and have specific
identifiable characteristics, i.e. the sheen or luster of a
pearl. There is no basis whatsoever in this record to support
the examiner’s assertion that the particulate calcium carbonate
of Brennan would be considered pearlescent by persons of ordinary
skill in the art. Since we are not aware of any scientific or
evidentiary basis for the examiners assertion, the burden of
persuasion does not shift to appellant. For the foregoing
reasons, the decision of the examiner is reversed.
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