Appeal No. 95-4754
Application No. 08/111,905
Sumitomo Chemical Company and Sumitomo Dow Limited. In
contrast the instant application bears the names of Shinichi
Yachigo and Kanako Ida as inventors, and Sumitomo Chemical
Company as sole assignee.
As to the issue at hand, appellants have not commented on
the examiner’s rejection or acknowledged it as an issue. See
appellants’ Brief, page 2, section 4. The examiner, in
contrast, appears to have made the provisional rejection
supra. However, a rejection under § 103 relying on § 102(f)
requires the examiner to establish a prima facie case of
obviousness and show based on the evidence of record that,
"he, did not himself invent the subject matter sought to be
patented." The examiner has not met this burden. To constitute
prior art under § 102(f) the examiner either would have to
show that Shinichi Yachigo and Kanako Ida were not the
inventors of the claimed subject matter in the instant
application or that Hiroshi Kojima was the inventor of the
subject matter sought to be patented. The examiner has not
established that fact and there is no evidence of record to
support such a finding. Accordingly, a § 103 rejection based
upon 35 U.S.C. § 102(f) is not sustainable.
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