Appeal No. 95-0757
Application 07/795,307
polymeric particles, not emulsion polymerization. Thus as stated
at column 3, lines 25 through 27, the Flesher process utilizes a
polymer-in-oil dispersion made by reverse phase suspension, ?as
opposed to emulsion polymerization?. Accordingly, the examiner
committed clear factual error in finding that Flesher teaches
emulsion polymerization of small diameter water soluble polymers.
It is well settled that obviousness is a legal conclusion
which must be based on facts, not speculation and generali-
zations. In re Warner, 379 F.2d 1011, 154 USPQ 173 (CCPA 1967).
In the situation before us, the examiner has not discharged his
initial burden of providing an accurate factual basis upon which
to conclude that one having ordinary skill in this art would have
arrived at the claimed subject matter without the benefit of
first reading appellants’ specification. Accordingly, we reverse
the examiner’s stated rejections of the appealed claims for
obviousness.
Upon our independent review of the relied upon references,
we observe that the patent to Elfers and the patent to Yamasaki
do in fact disclose the formation of polymers by water-in-oil
emulsion processes. See the abstract of Elfers and column 3,
lines 17-19 of Yamasaki. However, neither reference describes or
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