Appeal No. 1998-1834
Application No. 08/467,631
On this record, appellants alone disclose a method for improving the dirt
pick-up resistance of a dried coating formed from a coalescent-free aqueous
coating composition containing an aqueous emulsion-polymerized polymeric binder
having a glass transition temperature from about -15ºC to about +15ºC.
We are mindful that when the PTO shows sound basis for believing that the
products of the applicant and the prior art are the same, the burden of persuasion
shifts and applicant has the burden of showing that they are not. In re Spada, 911
F.2d at 708, 15 USPQ2d at 1658; In re Best, 562 F.2d 1252, 1255, 195 USPQ
430, 433 (CCPA 1977). On this record, however, the examiner has not established
a sound basis to justify shifting the burden to appellants to demonstrate that the prior
art compositions are not the same or substantially the same as that of appellants. It
is not enough, as the examiner seems to believe, that the prior art discloses an
aqueous emulsion-polymerized polymeric binder containing an amount, by weight,
of at least one copolymerized ethylenically-unsaturated active methylene monomer
which embraces the amount recited in appellants’ claims.
5
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007