Appeal No. 1999-0675 Page 4
Application No. 08/379,803
of identical monomers, employing the same or similar polymerization techniques, would produce
polymers having the identical composition”). In the present case, all of the claims require the
presence of microreticulated or microfibrillated microcrystalline cellulose (MRC or MFC) in a
predominant amount by weight. The specification describes MRC and MFC as highly sheared
forms of microcrystalline cellulose (MCC) prepared by subjecting MCC to certain defined
shearing processes (specification at 1, l. 30 to 2, l. 4 and 3, l. 28 to 18). In contrast, McGinley
describes either using plain unsheared MCC (McGinley at col. 2, ll. 53-64; col. 4, ll. 25-29, col.
4, ll. 39-42 and col. 4, ll. 57-68) or shearing MCC/galactomannan gum (MCC-GG) aggregate
under “high energy shear conditions” (McGinley at col. 8, ll. 31-39). When high energy shear is
applied, the result is a very fine, fibrous, GG-coated MCC particle in aggregate form (McGinley
at col. 9, ll. 11-13). Even if we accept the fact that the “high energy shear” of McGinley is the
same or similar to the shearing process used to make MRC and/or MFC, the starting material
sheared is different. The Examiner provides no reasonable basis to believe that sheared MCC-
GG in aggregate form is the same as MRC or MFC.
The Examiner has failed to establish anticipation with respect to the subject matter of
claims 1-13.
Obviousness-type Double Patenting
The Examiner rejected claims 1-13 under the judicially-created doctrine of obviousness-
type double patenting over claims 15 and 21 of McGinley. An obviousness-type double
patenting analysis entails two steps: (1) determine the differences between the subject matter of
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