Appeal No. 95-1211
Application 07/887,904
acid hydrazide and (b) a functionalized hindered phenol or a functionalized hindered amine hydrazide
and (ii) hydrocarbon cable filler grease within the interstices.
The appealed claims as represented by claim 12 are drawn to a wire or cable construction
wherein the wire or cable is jacketed and insulated by a mixture comprised of one or more polyolefins
and an antioxidant which is the reaction product of (a) a functionalized hindered amine amic acid
hydrazide and (b) a functionalized hindered phenol or a functionalized hindered amine hydrazide, the
construction being filled with a hydrocarbon cable filler grease. According to appellants, the antioxidant
“will resist extraction and be maintained at a satisfactory level” in the wire or cable construction (e.g.,
specification, page 2).
The references relied on by the examiner are: 3
Turbett 4,044,200 Aug. 23, 1977
Baron et al. (Baron) 4,874,803 Oct. 17, 1989
MacLeay et al. (MacLeay)4 0 434 080 Jun. 26, 1991
(published Eur. Pat. Application)
The examiner has rejected appealed claims 1 through 11, 16 and 17 on appeal under 35
U.S.C. § 103 as being unpatentable over Turbett5 in combination with Baron, MacLeay and appellants’
specification (page 1, line 6, to page 2, line 25). We affirm with respect to appealed
2 Appellants state in their principal brief (page 2) that the appealed claims are “argued in five separate
groups.” However, appellants do not argue the separate patentability of any of claims 2 (and 4 to 11), 3
and 16 over the applied prior art with specificity (principal brief, page 5). We further have treated claim
17 in the manner set forth below. Thus, we decide this appeal based on appealed claims 1 and 17. 37
CFR § 1.192(c)(5) and (6)(1993).
3 The examiner cited Amembal et al., U.S. Patent No. 4,234,656, issued Nov. 18, 1980, to show that
the antioxidant recited in claim 17 was “well known” and “not as prior art” (answer, page 6).
Appellants admit that this antioxidant was known in the art (reply brief, page 2) and we find that it is
disclosed in Turbett (col. 5, lines 16-17). Because reliance on the disclosure of Amembal would be
required to apply this antioxidant to appealed claim 17 in the manner set forth by the examiner, this
reference should have been included in the statement of the rejection. This type of error can be grounds
for reversal. See In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970);
compare Ex parte Raske, 28 USPQ2d 1304, 1304-05 (Bd. Pat. App. & Int. 1993). However, in
view of the disclosure in Turbett and appellants’ admission, we do not rely on Amembal et al.
4 The examiner styled this reference as “EP ‘080” in the answer (page 4).
5 The examiner withdrew Turbett, Patent No. 3,997,713, issued Dec. 14, 1976, on appeal as
cumulative to Turbett (answer, page 2).
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