Appeal No. 2000-1162
Application 08/967,876
With respect to Joyner, the examiner finds that the carbon black has a range of CTAB
from “7-22,” that examples in Table V show CTAB of “35 and 42,” and that “7-200 overlaps 10-
70,” the latter apparently with respect to the disclosure that “surface area (EMSA) of at least 7
m2/g and more preferably at least 35 m2/g up to 200 m2/g or higher” where the surface area is
based on CTAB (col. 15, lines 15-25) (answer, page 3). The examiner further finds that the
“carbon black maybe [sic, may be] incorporated into a rubber compound which may contain up
to 90% EPDM (column 9, lines 4-9) [and] [t]he compound may contain up to 250 parts of carbon
black (claim 18)” (answer, page 3). With respect to the carbon black, the examiner
acknowledges that “it would have been obvious . . . to choose a low surface area carbon black . . .
from a list of equivalents” (id.).
We cannot find in col. 15, lines 15-68, a “CTAB of 7-22.” We find that Joyner discloses
that “[u]p to 250 parts of carbon black can be included per 100 parts of copolymer (A)” with
“[l]oadings of from 50 to 250 parts of carbon black per 100 parts of copolymer often used” (col.
16, lines 4-10; see also col. 3, lines 2-8). We find that “copolymer (A)” is an ultra high
molecular weight copolymer as defined at col. 3, lines 12-33, which can be combined with “from
zero to about 90% by weight of another rubber” such as “EPDM rubbers” (col. 13, lines 37-44,
and col. 14, lines 4-9). We further find that in “[a] general and a typical recipe for preparing the
vulcanizable elastomer compositions useful in preparing high performance tires” shown in Table
VI, “Carbon Black” is “General” at “50-250” and “Typical” at “150,” with amounts of “Carbon
Black (ISAF) at “95” in Table VII and “Carbon Black” at “80” in Table IX. We note that carbon
black “ISAF” has an ASTM Designation (D-1765-82a) of “N200-N299” which corresponds to a
Surface Area (m2/g) (D-3765) of about 112 to 98 based on Table V (col. 15, lines 37-57).
Based on these teachings of Joyner, we find that as a matter of fact the reference does not
disclose a specific embodiment that anticipates any of the appealed claims, and the reference fails
to provide clear and unequivocal direction, such as a pattern of preferences, which leads those
skilled in the art to the claimed EPDM compositions, as picking and choosing among the
teachings of Joyner is necessary for that purpose. Accordingly, we reverse the ground of
rejection under § 102(e) over Joyner.
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