Appeal No. 1996-1782
Application 08/131,036
“75”, the difference is sufficiently small that prima facie,
one of ordinary skill in the art would have reasonably
expected a partially polymerized monomeric mixture having each
conversion to have substantially the same properties. See
Titanium Metals Corp. v. Banner, 778 F.2d 775, 783, 227 USPQ
773, 779 (Fed. Cir. 1985). Thus, if there is any difference
between “about 70” and “75”, it would have been prima facie
obvious to one of ordinary skill in the art, given comparative
example 3 of Nakasuga ‘981, to use a first stage conversion of
about 70 wt%. Consequently, we affirm the rejection under 35
U.S.C. § 103 for this additional reason.2
DECISION
The rejections of claims 1-20, 22-26, 28 and 29 under the
judicially created doctrine of obviousness-type double
patenting over claims 1-18 and 20-24 of copending Application
08/131,037 and under 35 U.S.C. § 103 over Martens considered
with one of Nakasuga ‘981, Nakasuga ‘180, Yada and Bartissol,
2A discussion of Martens, Yada, Bartissol and Nakasuga
‘180 is not necessary to our decision.
-7-7
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