Appeal No. 96-0473
Application No. 08/082,727
examiner has not rebutted appellants’ argument that a solvent poor phase “indicates that a phase
separation exists between the core and the wall material, and that any phase separation in the core does
not contain a liquid continuous phase since the core is solvent poor” (Reply brief, page 2, first full
para.).
Accordingly, we conclude that the examiner has not established a prima facie case of
obviousness. The rejection of claims 1, 2 and 5 through 7 under 35 U.S.C. § 103 as being
unpatentable over Wellman in view of Crystal is reversed.
II. Rejection of claims 1, 2 and 4 through 7 under 35 U.S.C. § 103 as being unpatentable over
Wellman in view of Crystal and further in view of Azar.
and
III. Rejection of claims 1 through 7 under 35 U.S.C. § 103 as being unpatentable over Wellman
in view of Crystal further in view of Azar and further in view of Sawai.
Since all the limitations of independent claim 1 are not disclosed or suggested by the applied
prior art of Wellman and Crystal under 35 U.S.C. § 103, we will not sustain the rejection of dependent
claims 3 and 4. Dependent claims are nonobvious under § 103 if the independent claims from which2
they depend are nonobvious. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988).
2 We have also reviewed the Azar and Sawai references additionally applied in the rejections of dependent
claims 4 and 3, respectively, but find nothing therein which makes up for the deficiencies of Wellman and Crystal
discussed above regarding claim 1.
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