Appeal No. 1999-0918
Application No. 08/399,690
copolymers are added to the styrenic polymers to improve impact resistance.
Akkapeddi also discloses these compositions demonstrate adhesive properties and
are useful for lamination to other polymers and coextrusion with other polymer.
Thus, Akkapeddi describes an embodiment which render the claimed invention
obvious.2
As stated above, we rely on Akkapeddi alone to establish the prima facie
case. We do not consider the rejection over Akkapeddi alone to constitute a “new
ground” of rejection. The issue, in this respect, is whether Appellants have had a
fair opportunity to react to the thrust of the rejection. In re Kronig, 539 F.2d 1300,
1302-03, 190 USPQ 425, 426-27 (CCPA 1976). Limiting the discussion to the
evidence contained in Akkapeddi while using the same basis and teachings as the
Examiner relied upon does not constitute a new ground of rejection. See Kronig,
539 F.2d at 1303, 190 USPQ at 427; In re Bush, 296 F.2d 491, 496, 131 USPQ 263,
266-67 (CCPA 1961).
2 During the Hearing on November 27, 2001, Appellants’ representative acknowledged
that the invention of claim 1 was not patentable over the invention of Akkapeddi.
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