Appeal No. 2000-1180
Application 09/000,028
polyester resin, filler, and a monomer, these references each
disclose a composition that is inherently a solid at room
temperature (20°C). (answer, pages 5-6). Alternatively, the
examiner states it would have been obvious to formulate solid
compositions because “it would be within the skill of one in the
art to select suitable percentages . . . to achieve a solid
composition”. (answer, page 4). The examiner’s position also is
that each of the references does not indicate that the disclosed
composition is cold curable, however, the examiner asserts that
appellant’s claims do not require such subject matter. (answer,
page 7).
Appellant argues that in fact each of the references does
not disclose a composition that is solid at 20°C. (pages 8-16 of
the brief and the declaration of Leslie Cheriton). For example,
appellant states that Simmons, at column 5, lines 18-20,
discloses a gel time of one minute, suggesting that the
composition cannot be a solid. (brief, page 13). Appellant
states that Schmank discloses that the compositions are flowable
at 20 to 40°C. (brief, pages 13-14). Appellant states that
Skipton’s examples are pastes. (brief, page 13).
In response, the examiner, oddly enough, asserts that
because Schmank discloses that the composition is flowable at
40°C, the composition is therefore a solid at temperatures less
than 40°C. We disagree with the examiner’s interpretation of
Schmank in this regard. See for example, column 2, lines 62-68
of Schmank. The examiner does not address the other
aforementioned points raised by appellant in connection with the
Skipton and Simmons references. (answer, pages 5-7).
Furthermore, the examiner does not recognize the aspect of
appellant’s claimed invention regarding “a cold cure
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