Appeal No. 1997-2376
Application 08/199,863
F.2d 1272, 1281, 23 USPQ2d 1839, 1846 (Fed. Cir. 1992).
Because the examiner has not explained why a method which
includes appellant’s claim limitations noted above would have
been fairly suggested to one of ordinary skill in the art by
any claim of Sharma, the examiner has not carried the burden
of establishing a prima facie case of obviousness-type double
patenting. Consequently, we reverse the obviousness-type
double patenting rejection.
Rejection under 35 U.S.C. § 103
As correctly pointed out by the examiner (answer, page
6), Hyche does not disclose the requirements in appellant’s
claim 49 of a polymer additive particle size of less than
about 40 Fm, at least one surfactant having a hydrophobic-
lipophobic balance (HLB) value of less than 9, and a
composition which is in powder form, has a particle size of
about 5.0 to about 1000.0 Fm, and contains about 2.0 to about
40.0 wt% of encapsulated water based on the total of the
composition.
The examiner argues (answer, pages 6-7) that
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