Appeal No. 1999-0989 7
Application No. 08/265,267
We further find that water containing crude oil was contacted with the composition
of the claimed subject matter. See Example 2. Based upon the above findings and
analysis, we conclude that the teachings of Gabrick are sufficient to sustain the anticipation
rejection of claims 1 and 29.
In rebuttal to the anticipation rejection over Gabrick, appellant has submitted a
KEMESTER® product sheet on July 2, 1996. We find however, that the product sheet
submitted is directed to methyl esters manufactured by Humko Chemical. The Gabrick
reference, upon which the rejection is based, specifically refers to a product having the
same Trade name but produced by Witco Chemical Corp. The evidence submitted of
record fails to show the requisite nexus between the product of Humko and Witco
Chemical Corp. Moreover, even if they were shown to be the same products produced by
Witco, we cannot ignore the express teachings of Gabrick both in the specification and
claims directed to ethylene polymers.
Based upon the above reasons and those set forth in the Answer, we have
determined that the examiner has established a prima facie case of anticipation.
The Rejection of Claims 1, 24, 27 and 29 over Gabrick
We shall also sustain the rejection of claims 1 and 29 as unpatentable over Gabrick.
It is well settled that the ultimate obviousness is lack of novelty. The claims cannot have
been anticipated and not have been obvious. In re Fracalossi, 681 F.2d 792, 794, 215
USPQ 569, 571 (CCPA 1982).
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