Appeal No. 1997-0227
Application No. 08/113,147
then reacts with the shell monomer. Hence, the
examiner's position is reasonable, that Appellant
has not demonstrated the absence in Fryd '192 of
unpolymerized butadiene from the system to which the
shell monomer is added.
But see Fryd '192, col. 15, lines 35-37 (subsequent to
polymerization of core, emulsion was filtered to produce a
solid content of 35.7% and a particle size of 0.09 micron).
Assuming arguendo that the examiner's presumption is true, the
effect of one unreacted butadiene core monomer on the microgel
as a whole would be de minimis.
Based on the record before us, we find that the claimed
microgel and the microgels disclosed in Fryd '192 are
substantially different in view of the operation of the
grafting agents in Fryd '192. Therefore, under Best, 562 F.2d
at 1255, 195 USPQ at 433, the burden has been improperly
shifted to appellants. Since this finding is dispositive of
all issues before us, the rejection under 35 U.S.C. § 102(b)
and each of the rejections under 35 U.S.C. § 103 are reversed.
REVERSED
William F. Smith )
Administrative Patent Judge )
)
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